Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer

by Peter Charles Hoffer

Overview

In the current legal climate where “everyone is an originalist,” conventional wisdom suggests that judges merely find law, rather than make it. Orthodox common-law jurisprudence makes fidelity to the past the central goal and criterion. By contrast, the alternative approach, “reading the law forward”—what some call judicial pragmatism or consequentialism—is viewed as heretical. Rather than mount a theoretical defense of a forward-thinking jurisprudence, legal historian Peter Charles Hoffer offers an empirical study of how this approach to constitutional interpretation actually leads to better law. Reading Law Forward looks at seven judges who exemplify this alternative jurisprudence: John Marshall, Joseph Story, Lemuel Shaw, Louis D. Brandeis, Benjamin Cardozo, William O. Douglas, and Stephen G. Breyer.

“In the hands of America’s leading judges, a jurisprudence of reading law forward enabled courts to respond to the challenges of changing conditions. It kept law fresh. It promoted and still promotes the growth of a democratic society,” Hoffer convincingly argues.

Product Details

ISBN-13:	9780700635092
Publisher:	University Press of Kansas
Publication date:	02/06/2024
Sold by:	Barnes & Noble
Format:	eBook
Pages:	240
File size:	3 MB

About the Author

Peter Charles Hoffer is distinguished research professor of history, University of Georgia, and the author of numerous publications, including Daniel Webster and the Unfinished Constitution; Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review; The Free Press Crisis of 1800: Thomas Cooper’s Trial for Seditious Libel; and, with Williamjames Hull Hoffer and N. E. H. Hull, The Supreme Court: An Essential History, Second Edition, all from Kansas.

Table of Contents

Introduction: Reading Law Forward

1. John Marshall

2. Joseph Story

3. Lemuel Shaw

4. Louis D. Brandeis

5. Benjamin N. Cardozo

6. William O. Douglas

7. Stephen G. Breyer

Conclusion: The Making of a Democratic Jurisprudence

Acknowledgments

Notes

Index

Editorial Reviews

Examining the work of seven leading figures in the history of US jurisprudence, Hoffer shows through sketches of their lives and detailed analysis of some of their most important opinions how each was committed to interpreting the law so that it would continue to contribute to the improvement of social and economic life. To do so they drew upon no single interpretive theory but rather a wide range of materials: text, original understandings, precedents, policy considerations. This is a bracing corrective to arguments that assert that our tradition is firmly committed to a single interpretive approach that disdains attention to policy and good outcomes.”—Mark Tushnet, William Nelson Cromwell Professor of Law, emeritus, Harvard Law School, and author of Red, White, and Blue: A Critical Analysis of Constitutional Law

From the Publisher