DLaycock at law.utexas.edu
Mon Oct 10 08:32:36 PDT 2005
Yes, constitutional theory exists in cases, and yes, it is
appropriate to question the nominee about constitutional theory as it
exists in cases.
My post saying much academic theory should be off limits was not in
response to Bobby's proposed questions, but rather in response to
Sandy's post about a Justice saying a constitutional theory conference
was irrelevant to his work.
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Monday, October 10, 2005 10:13 AM
To: rtepker at ou.edu; Sanford Levinson; tushnet at law.georgetown.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Questioning Miers
I do not see how my original post turned into a discussion about
whether nominees should be queried on works of academic scholarship.
Although, I do believe such works are relevant to judging, my original
statement made no mention of any texts independent of caselaw. For any
subsequent statements I made to suggest such a turn I am deeply sorry.
Can we agree that constitutional theory and history exist in
actual cases? If so, let's imagine no one ever wrote a book or article
on either. Is it then appropriate to question Ms. Miers on
constitutional theory and the development of constitutional law as these
topics exist in actual cases?
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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