A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice.

The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad methodology. In this Essay, I try to explain why.