Your Daily Provocation

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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5 Responses

  1. Orin Kerr says:

    Dave asks, “how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?”

    I don’t think most practicing lawyers today know enough about the Warren Court to have an opinion on it. But I suspect that the percentage of law professors who would want to live in such a world would be quite high.

  2. AF says:

    The Warren Court existed during a particular historical time and many of its “premises about judicial and national power and competency” were correct at that time. It is for this reason that most of the leading Warren Court precedents are highly popular, if not universally acclaimed. While it may be true that the Warren Court’s approach is no longer appropriate, it is highly anachronistic to call it “wrong.” It is particularly odd to do so if you want to simultaneously maintain that the Court’s landmark decisions such as Brown, Gideon, and Miranda were correctly decided.

  3. Dave Hoffman says:


    Well, I at least feel would feel quite good about jettisoning Miranda & most of the Court’s constitutional criminal law adventures. (See generally Stuntz.) The point of the post, though, was that whatever one can say about the merits of the precedents at the moment they were written, not many lawyers would want a court today that nationalized (constitutionalized) more areas of political life.

  4. Dave Hoffman says:

    Yes, though it’s also the case that bernie sanders would win an election of obama v. sanders walking away.

  5. Joe says:

    How different is the Supreme Court today? I share AF’s sentiments generally and note that at the time there was broad support — such as JFK supporting the religious rulings — of what they did politically. Of course, there was a strong minority in opposition. Ditto during Marshall’s day.

    Anyway, I repeat my question. What great reduction of “nationalized” areas of “political life” is now off limits by this Court, even putting aside a certain ruling in 2000? The health care ruling, for instance — a major piece of legislation was barely upheld with one part of it struck down 7-2 (the Medicaid argument deemed specious even by some credits of mandate beforehand). Affirmative action, the death penalty, etc. still seen as issues the USSC can “nationalize.”

    As to “jettisoning,” go at it — should we jettison Gideon? The application of the BOR (as a whole) to the states? I guess the exclusionary rule case, written by one of the more conservative members & a former prosecutor (Tom Clark / Mapp) is an easy target, though Holmes thought it obviously appropriate when applied to the federal government. Brown?

    Anyway, AF is correct — the Warren Court was a perfect storm, including a moderate Republican leading the way. And, did anyone see that HBO drama on the Muhammad Ali case? Christopher Plummer as John Harlan … pretty good!