Garrett Epps

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.comHis book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.

Recent Articles

Can Buffy's Brilliance Last?

W hen future critics ask whether turn-of-the-century American TV produced any works of genius, the verdict on the entire medium--all 128 channels of it--is likely to depend on their assessment of a cult teen hit currently airing on UPN, with syndicated reruns on FX. At first glance, Buffy the Vampire Slayer seems indistinguishable from the WB's rancid Dawson's Creek or the American Pie movies: An all-white cast of impossibly nubile women and muscular men (they call themselves "the Scooby gang") pretend to be teenagers while modeling the latest in Southern California teen slang and sportswear. But there's a difference: The other shows paste a veneer of realism over a fantasy of adolescence; Buffy adopts a facade of fantasy to cover a portrayal of the teen years as they really are. The show is a worthy successor to school stories like Nicholas Nickleby, Stalky & Co., and The Catcher in the Rye. When I was 12, I stumbled across George Orwell's "Such, Such Were the Joys," a scathing...

MicroJustice

In a surprise breakthrough in antitrust settlement talks, negotiators for Microsoft and the government have agreed on a plan by which the software giant will acquire the U.S. Department of Justice for $7 billion, sources close to the discussions said yesterday. Though no official announcement has been made, the parties are said to be working out the final details of the settlement, including the role of Attorney General Janet Reno in the new subsidiary, which will be known as "MicroJust." "Really it's just a question now of who gets a parking place and a company ThinkPad," said one source. The breakthrough is credited to the mediation of Federal Circuit Judge Richard Posner, a law and economics scholar who has advocated privatization of many governmental functions. Federal District Judge Thomas Penfield Jackson, who issued a stinging opinion calling Microsoft a predatory monopolist, appointed Posner last month. Posner is reported to have pointed out that a...

Democracy's Blueprints

Designing Democracy: What Constitutions Do By Cass R. Sunstein. Oxford University Press. 304 pages $29.95 S ince the collapse of the Soviet Union, constitutions have been a major American export. Like French lieutenants carrying a field marshal's baton in their rucksacks, many top-ten law professors have a draft document for Klopstockia or Zembla tucked away on their hard drives, just in case. But knowledge of U.S. constitutional law is a curious qualification in a designer of new systems. True, our constitution is now the oldest operative written charter in the world. But its survival has not been a triumph of design--in fact, quite the contrary. The Constitutional Convention of 1787 stands as a sober warning that even the wisest architects may be unable to put a real country with real people on any sort of rational structural footing. Despite the talent and goodwill of its members--Thomas Jefferson called the convention an "assembly of demigods"--the framers wrote into their product...

The Law According to Levy

In 1957 the Fund for the Republic asked a young historian to write a brief memorandum on the original understanding of the First Amendment. Leonard Levy, who was teaching at Brandeis University, examined the sources and concluded that, at the time the amendment was framed, American courts recognized the crime of "seditious libel"--criticism of the government that could be punished as a crime even if true. "Freedom of speech," he wrote, then meant only the freedom from "prior restraint" on what could be said; speakers could be readily punished after the fact. Robert M. Hutchins, who was head of the Fund, told Levy that his conclusions would provide encouragement to McCarthyites seeking to suppress "subversive" speech. The pamphlet was published--but without the seditious-libel findings. Then as now, Leonard Levy was not one to walk away from a fight. "I decided to strike back giving what I thought would be maximum publicity to the very section that...

Liberalism's Lifeguard

Sovereign Virtue: The Theory and Practice of Equality , Ronald Dworkin. Harvard University Press, 511 pages, $35.00. About halfway through Sovereign Virtue, I came across an intriguing paragraph. Ronald Dworkin is discussing Lochner v. New York, an infamous 1905 decision in which a conservative majority of the U.S. Supreme Court struck down a statute limiting the workweek of bakers to 60 hours. The statute, the Court explained blithely, wrongly limited the bakers' "freedom of contract" (a right mentioned nowhere in the Constitution). The remedy was to guarantee workers--rich or poor--the right to sweatshop conditions. Dworkin seems to agree, but for progressive reasons: "It is wrong in principle for the state to deny people the right to work on terms they are willing to accept, in order to improve the economic situation of workers generally, unless it provides unemployment compensation or other relief ... sufficient to make their circumstances plausibly as good as they would be if...

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