Youngstown as precedent

Tue Aug 8 21:37:10 PDT 2006

I love Justice Jackson's opinion, too.  But isn't the problem that what I (and I assume you) love about the opinion has basically nothing to do with the three-tier framework for which the opinion is remembered and cited?  It's trivially easy to play a game with your students and make them put the steel seizure itself into all three tiers.  Students (and law clerks, and lots of lawyers) love three-part tests, so they focus on trying to place cases within the three-tier framework of Jackson's opinion.  When they do that, they're dissatisfied, because the three-tier framework doesn't help you decide any hard case.  In other words, students (and judges) focus on the one thing that looks like "standard-form legal analysis" and disregard the mature post-Realist stuff.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Tue 8/8/2006 10:50 PM
To: Marty Lederman; Mitch Berman; conlawprof at lists.ucla.edu
Cc: Tricia Bellia
Subject: RE: Youngstown as precedent

I continue to believe in the greatness of Jackson's opinion, but I must report that the students in a seminar that Jeff Tulis and I gave last semester on "emergency powers" seemed relatively unimpressed.  Perhaps part of the reason for the difference in perception is that I have described Jackson as a fully "adult" opinion written by a post-Realist who in fact spends almost no time in his opinion pretending that standard-form legal analysis will provide the answer.  He draws on his personal experience (one of the reasons, I am confident, that it is a sole opinion) and, ultimately, what he thinks he has learned from a life spent in public service at the highest levels (including his experience at Nuremberg).  This is one reason I believe that the Court badly needs several members with serious and substantial experience in actual government, unlike the present Court, where the closest person with such experience is Clarence Thomas.

sandy

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From: conlawprof-bounces at lists.ucla.edu on behalf of Marty Lederman
Sent: Tue 8/8/2006 9:43 PM
To: Mitch Berman; conlawprof at lists.ucla.edu
Cc: Tricia Bellia
Subject: Re: Youngstown as precedent

I don't know that the Jackson concurrence was ever quite viewed as "authoritative," Mitch -- after all, it doesn't really tell us how any difficult cases ought to come out.  But it came to be seen as being as descriptively sophisticated and helpful as anything that had been written up to that point.  Its basic insights that the political branches' powers are overlapping, interdependent and coordinate, rather than strictly "separated," and that "functionalist" rather than "formalist" approaches are more fruitful in such conflicts, seem second-nature now.  But as Black's opinion demonstrated, the formalist model still held a great deal of sway at the time.  

My recollection is that Black's opinion never caught on as important -- after all, just about all it purported to "hold" was that Presidents don't have any independent power to seize steel mills, and even that holding was only truly joined by Douglas, and perhaps Jackson.

It didn't take too long into the disputes over Vietnam and Watergate, however, to see how valuable Jackson's understandings were.  In her terrific 2002 piece in Constitutional Commentary, Tricia Bellia cites at least a couple of mid-1970s texts that already lauded Jackson as canonical.  Tricia might know more precisely the answer to your question.

Mitch undoubtedly already knows this, but his colleague Sandy Levinson is on record as naming Jackson's opinion as his all-time favorite (with, I suppose, the opinions in Blaisdell close behind) -- see 74 Texas 1195 -- for reasons quite other than those I've listed above.  He wrote that Jackson's opinion "is one of the few opinions that make me truly proud to be a constitutional lawyer."

	----- Original Message ----- 
	From: Mitch Berman <mailto:MBerman at law.utexas.edu>  
	To: CONLAWPROF at lists.ucla.edu 
	Sent: Tuesday, August 08, 2006 7:15 PM
	Subject: Youngstown as precedent

	I'd be interested to know the story of how and when Jackson's concurrence came to be treated as the authoritative opinion from Youngstown, over Black's majority opinion.  Could anyone provide me with some guidance, on-list or off?

	Thanks.

	Mitch Berman

	The University of Texas

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