[Adam and I are going to experiment with some more posts next quarter before we decide whether to give up on this experiment, but in the meantime . . . .]
I see that in last year’s “writings” post I confessed that the year got away from me, and boy that seems comical now — between the pandemic, a delightful new baby, paternity leave, and associated child care obligations, this was not a productive year. But thanks to the magic of compound interest, I published a couple of things I’m happy with.
One article, Precedent and Discretion, is a short piece in the Supreme Court Review about the new Roberts Court’s treatment of precedent. I argue: “The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little.” The piece was in many ways inspired by my disagreement with Richard Re’s extremely important essay Precedent as Permission, which I also recommend to anybody interested in these debates.
The other article, Adjudication Outside Article III, came out in the Harvard Law Review and you can get the abstract, the blog post version, and the podcast version all here. It’s probably the best thing I’ve published in five years, and I just wanted to say something about how I started writing it:
When I first started teaching federal courts, the one subject that I really struggled with teaching was the constitutionality of so-called legislative courts. In a way the doctrine was pretty straightforward, but the logic of the doctrine just completely eluded me. Usually when that logic eludes me I start by going back to first principles, and then mark all of the specific places where the doctrine went off track. But here, I just couldn’t figure it out. I worried that my own confusion wouldn’t serve students well and I stopped teaching the subject for several years, leaving it to my colleagues in administrative law. But one day, while I was following a legal debate between professors Aditya Bamzai and Steve Vladeck it clicked, and I started the article. Years later, here we are.
I also wrote my first op-ed in about four years, with the awkward title: Conservatives, Don’t Give Up on Your Principles or the Supreme Court. It was nice to do, but I may have gone too easy on the Court’s decision in Chiafolo, and more generally the experience reminded me why I don’t write many op-eds. Still, I couldn’t pass up the chance to get positivist originalism into the pages of the paper of record.
And that’s it for this year. I’m looking forward to getting back to work.