Glenn Reynolds not only teaches law at the University of Tennessee College of Law, where he is the Beauchamp Brogan Professor of Law, he writes regular newspaper columns and books of general interest, conducts interviews for InstaVision, and scours the Web for material of interest to flag on InstaPundit, which looks like it would have to be a full-time job all by itself. And he also publishes readable law review articles within the areas of his professional expertise.
His most recent law review article is “National Federation of Independent Businesses v. Sebelius: Five Takes,” co-written with Professor Brannon P. Denning, published in the Hastings Constitutional Law Quarterly, and available for downloading on the Social Science Research Network. My sole purpose here is to draw your attention to the article. The following five notes on “Five Takes” are superfluous:
1. Reynolds and Denning observe that the article follows their “now famous ‘Five Takes’ format[.]” The humor is unusual in a law review article.
2. NFIB upheld Obamcare from constitutional challenge and turned on Chief Justice Roberts’s opinion. Reynolds and Denning devote their Five Takes to an examination of Chief Justice Roberts’s opinion from various theoretical perspectives upholding judicial review.
3. None of the Five Takes really examines the merits of Roberts’s opinion on its own terms, though Reynolds and Denning do make critical comments in passing. They write, for example, that “aspects of Chief Justice Roberts’ decision seemed unconvincing, even unprincipled,” that Roberts’s opinion gives the appearance of being part of the political “hue and cry” and that “Roberts’ opinion left himself open to the charge that he sacrificed both consistency (by holding that the mandate is both tax and not tax) and principle (by upholding the tax/not tax mandate).” Guys, how about Five More Takes?
4. I infer that Reynolds and Denning are not impressed by the merits of Roberts’s opinion. They say it “struck an odd note.” They observe that Roberts upheld Obamacare under Congress’s power to tax, but note that the Court did not find Obamacare enough of a tax to trigger the Anti-Injunction Act, which would have precluded judicial review on the tax question. They find the approach “somewhat unconventional.” Explaining and applying the various theoretical approaches upholding judicial review, they find (I think it’s fair to say) Roberts’s opinion wanting. Even if one or more of these approaches vindicated Roberts’s opinion, wouldn’t the more salient question be whether Roberts got it right on the merits? (Okay, so this is a note and a query.)
5. A usage note. Discussing the late Yale Law School professor Charles Black’s justification of judicial review as providing a legitimating function, Reynolds and Denning recall four elements that a tribunal must have to serve such a purpose. Among the four elements Black attributed to the Supreme Court, they say, is the element of a body “comprised of” specialists in tradition. I believe that good usage faults “comprised of” as erroneous
I enjoyed the article and thought you might too.