Starger on Competing Traditions and Due Process Dissent

Exile on Main Street: Competing Traditions and Due Process Dissent has just been posted by Colin P. Starger, University of Baltimore School of Law.  It will appear in the Marquette Law Review, Vol. 95, 2012.  Here's the abstract:

Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in caselaw. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in empirical approach, this Article proposes an alternative method that permits analysis of contextual and inter-textual aspects of doctrinal development. This method proceeds by dividing doctrinal territories into rival schools of thought and then constructing opinion genealogies for each competing school. Connections between opinions – majority, concurring, and dissenting – are justified using both citation and more nuanced hermeneutic analyses. Through systematic tracking of debate between rival schools over generations, the impact of dissents is revealed in the turns taken during unfolding doctrinal argument.

Using this method, this Article examines two key Due Process territories – economic liberty and “incorporation” – and demonstrates how uncited Supreme Court dissents dramatically changed the course of these doctrines. First, it is demonstrated that uncited dissents by Joseph Bradley in the Slaughter-House Cases and by Oliver Wendell Holmes in Lochner v. New York directly contributed to the well-known rise and fall of economic liberty. Second, the momentous battle over incorporation is proven to have dramatically turned under the influence of uncited dissents by John Marshall Harlan in Hurtado v. California and Hugo Black in Adamson v. California. The incorporation story features analysis of John Paul Stevens’ final passionate dissent after 35 years on the Court, which came in last Term’s blockbuster Second Amendment incorporation case, McDonald v. City of Chicago. Apparent contradictions in this critical opinion are resolved by connecting Stevens to the tradition of uncited great dissents that forever changed substantive due process doctrine.

To illustrate the results of its method, this Article introduces an innovative series of “opinion maps” that graphically represent the competing due process genealogies in economic liberty and incorporation doctrine. Rendered using custom software designed by the author, the opinion maps present information-rich, epic-scale historical portraits of these key constitutional doctrines. The maps have practical and theoretical use. Practically, they offer accessible guides to the place of and relationships between major opinions in two crucial substantive due process debates. Theoretically, the figures rendered collectively suggest deep metaphors for the interpretative space we call doctrine and for the vital role dissents play in drawing lines of authority that define the shape and boundaries of this interpretative space.