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Legal Commentary

: Prawfs

Weekend Reading: Segall on Tribe's "Invisible Constitution"

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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Thanks, Dan, for posting the table of contents for the Michigan Law Review's annual books issue; it's always one of the better annual reads. I haven't seen hard copies of this yet. In the meantime, readers may enjoy Eric Segall's review, in Northwestern's Colloquy, of Laurence Tribe's Invisible Constitution. It's a very enjoyable read. I have reviewed Tribe's book here, and I reach very similar conclusions. Both of us are dissatisfied with the book, but I must say that it provided a very useful basis for discussion of substantive due process in my constitutional law class the other day.

Incidentally, I don't know whether it's generational, regional, or whether it has something to do with the [insecurity/common sense] of current law students, but I find it hard these days to get students even to acknowledge the possibility of legitimate substantive due process rights -- and the P & I Clause and the Ninth Amendment don't tend to change that if they're included in the conversation. in saying so, I'm not tipping my hand as to whether I think they're right or wrong; I'm just a little startled that I find it so hard to find defenders of this doctrine, even though it's plain that many students agree with some of the outcomes in some of these cases. On the other hand, some of the few who are sympathetic tend also to think Lochner was rightly decided. Interesting! Quite a different reaction from the fairly orthodox reactions I experienced from my classmates when taking con law at Columbia a million years ago.

Full post as published by Prawfs on March 27, 2009 (boomark / email).

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