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Originalism is an enormously popular—and equally criticized—theory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, "We are all originalists." Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism.
The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice.
Price: $24.95
Pages: 240
Publisher: Stanford University Press
Imprint: Stanford Law Books
Publication Date:
09 January 2013
Trim Size: 9.00 X 6.00 in
ISBN: 9780804785075
Format: Paperback
"The Failed Promise of Originalism is more comprehensive than prior studies, and Cross presents his findings with admirable clarity and candor . . . The Failed Promise of Originalism largely succeeds in debunking the notion that originalism is comparatively more effective than its rivals at limited judicial discretion."
Frank B. Cross is the Herbert D. Kelleher Centennial Professor of Business Law at the University of Texas. He is the author of The Theory and Practice of Statutory Interpretation (Stanford, 2009) and Decision Making in the U.S. Courts of Appeals (Stanford, 2007), among other books.