Legal Commentary

Brannon Denning (Cumberland) has a nice, and pleasantly short, piece on SSRN called The New Doctrinalism in Constitutional Scholarship and Heller v. District of Columbia.  Here's the abstract:

This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning - the usual focus of constitutional theory - and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in constitutional theory. The upcoming case on the Second Amendment, Heller v. District of Columbia, is offered as a case study in the payoff for constitutional law of taking doctrine seriously.

Read the whole thing; it's well worth it and is a good introduction to what Denning calls "the New Doctrinalism" and I call constitutional decision rules theory.  (Alas, his is catchier, although I am not sure that it is either more descriptively accurate or more attractive to refer to this scholarship as "doctrinalism.")  For my own contributions to this discussion, see this paper.