Stephen Sachs: Originalism as a Theory of Legal Change
Michael Ramsey
Stephen Sachs (Duke University School of Law) has posted Originalism as a Theory of Legal Change (Harvard Journal of Law and Public Policy, forthcoming) on SSRN. Here is the abstract: Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on […]
Randy Kozel: Second-Best Stare Decisis
Michael Ramsey
Randy Kozel (Notre Dame Law School) has posted Second-Best Stare Decisis on SSRN. Here is the abstract: If Supreme Court Justices differ over the proper interpretation of the Constitution, can they nevertheless agree about the treatment of constitutional precedent? The Supreme Court’s existing doctrine of stare decisis has much to recommend it. Yet the Court’s jurisprudence […]
Benjamin Justice: The Originalist Case Against Vouchers
Michael Ramsey
Benjamin Justice (Rutgers University) has posted The Originalist Case Against Vouchers: The First Amendment, Religion, and American Public Education on SSRN. Here is the abstract: During the last three decades, proponents of public school voucher programs on and off the bench have turned to original meanings discourse to argue that spending public dollars for religious education […]
Robert Pushaw: Fortuity and the Article III ‘Case’
Michael Ramsey
Robert Pushaw (Pepperdine University – School of Law) has posted Fortuity and the Article III 'Case': A Critique of Fletcher's 'The Structure of Standing' (Alabama Law Review, Vol. 65, No. 289, 2013) on SSRN. Here is the abstract: 25 years after William A. Fletcher wrote “The Structure of Standing,” Robert Pushaw builds upon Fletcher’s theory of […]
David Brink: Originalism and Constructive Interpretation
Michael Ramsey
David Brink (University of San Diego School of Law) has posted Originalism and Constructive Interpretation on SSRN. Here is the abstract: This essay argues that a number of Dworkin’s signature jurisprudential claims — including his criticism of Hart’s model of rules, his moralized reading of the Constitution, and his defense of constructive interpretation — cohere reasonably […]
Harold Anthony Lloyd: Real-World Semantics and Fictions of Originalism
Michael Ramsey
Harold Anthony Lloyd (Wake Forest University School of Law) has posted Plane Meaning and Thought: Real-World Semantics and Fictions of Originalism on SSRN. Here is the abstract: This article explores how meaning and thought work in the real-world of human experience. In doing so, it explores five basic planes or levels of such meaning and thought: […]
Andrew Koppelman: Scalia and Garner on Interpretation
Michael Ramsey
Andrew Koppelman (Northwestern University School of Law) has posted Passive Aggressive: Scalia and Garner on Interpretation (Boundary 2: An International Journal of Literature and Culture, Vol. 41, Summer 2014) on SSRN. Here is the abstract: Antonin Scalia’s coauthored treatise on legal interpretation is also a melodrama, with sharply drawn good guys and bad guys. The hero […]
Neil Buchanan on Textualism
Michael Ramsey
At Dorf on Law, Neil Buchanan: Hate Crimes, Chemical Weapons, and the Internal Revenue Code. Here is an excerpt: In his post here yesterday, Professor Dorf raised an interesting and important question about statutory interpretation, suggesting that perhaps current practices are "unduly influenced by textualism." Discussing the Sixth Circuit's opinion in United States v. Miller, a hate […]
Herbert Hovenkamp: Inventing the Classical Constitution
Michael Ramsey
Herbert Hovenkamp (University of Iowa – College of Law) has posted Inventing the Classical Constitution on SSRN. Here is the abstract: One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such […]
Jonah Gelbach on Isolated Textualism and the Halbig Litigation
Michael Ramsey
I've been mostly avoiding much comment on the Halbig (Affodable Care Act subsidies) litigation, on the ground that I don't intend to read the entire Affordable Care Act, but this post is too ill-conceived to pass up. At Balkinization, Jonah Gelbach (U. Penn. Law School) guest-posts The Methodological Absurdity of Isolated Textualism: Halbig, King, and How Not […]