May 5, 2012
Saturday Evening Review: Constitutionalism Beyond SCOTUS
The role of the "lower" federal courts in shaping constitutional doctrine as it is taught and theorized can be under-rated. Many ConLawProfs have strategies to combat SCOTUS-dominance in our classrooms given our understandings about how constitutional law is actually practiced. But often our discussions of "lower court" decisions are refracted through SCOTUS opinions as well as being very doctrinally focused.
In an important new article, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, forthcoming in American University Law Review, available on ssrn, Professor Doni Gewirtzman considers how constitutional law operates at the circuit court level. Gewirtzman argues that circuit courts - - - and indeed, individual judges - - - are parts of an interpretive system where constitutional law is made from both the top-down and from the bottom-up.
Using a "complex adaptive system” model, Gewirtzman considers how courts "balance their need for overall order and stability with demands for evolution and change," relying on both variation (the degree to which the system’s components differ from one another) and interdependence (the degree to which the system’s components affect one another) to manage those competing forces.
In so doing, Gewirtzman has some compelling insights about the circuit courts as "percolators" of constitutional law and some useful discussions of "outlier" judges and circuits. While Gewirtzman does discuss specific examples, the strength of the article is its attempt to provide a theoretical framework that makes constitutionalism in the circuit courts explicable apart from specific doctrine.
It's an article worth reading for any ConLawProf whose teaching and scholarship considers circuit courts - - - and perhaps even more important for ConLawProfs who have become exclusively focused on SCOTUS as the sole arbiter of US constitutional law.
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