Michael Stokes Paulsen: The Commander in Chief Power to Target and Kill Americans
Michael Ramsey
Michael Stokes Paulsen (University of St. Thomas School of Law) has posted Drone on: The Commander in Chief Power to Target and Kill Americans (38 Harvard Journal of Law and Public Policy 43 (2015)) on SSRN. Here is the abstract: The President of the United States, in his capacity as Commander in Chief in time of legally […]
Richard Re on Standing’s Lujan-ification
Michael Ramsey
At Re's Judicata, Richard Re: Standing’s Lujan-ification. Here is an excerpt: Now consider Lujan. Written by Justice Scalia, that most famous devotee of rule-like law, Lujan synthesized prior standing precedent into a compact passage with an explicitly tripartite enumeration, two demarcated sub-points, and an absolutist lead sentence. Here it is, with some cites and alterations […]
Ashutosh Bhagwat: Posner, Blackstone, and Prior Restraints on Speech
Michael Ramsey
Ashutosh Avinash Bhagwat (University of California, Davis – School of Law) has posted Posner, Blackstone, and Prior Restraints on Speech on SSRN. Here is the abstract: Judge Richard Posner recently asserted that the original understanding of the free speech clause of the First Amendment was to prohibit “censorship” – meaning prior restraints – but not subsequent […]
Victoria Nourse on Legislative History
Michael Ramsey
Victoria Nourse (Georgetown University Law Center) has posted two interesting articles on SSRN. The first is Elementary Statutory Interpretation: Rethinking Legislative Intent and History (Boston College Law Review, Vol. 55, pp. 1613-1658, 2014) on SSRN. Here is the abstract: This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts — legislative […]
Eric Segall on Originalist Defenses of Overturning Same-Sex Marriage Bans
Michael Ramsey
At Dorf on Law, Eric Segall: Originalist Defenses of Overturning Same-Sex Marriage Bans: Really? From the introduction: It is official. We are all originalists now, and interestingly, at the same time, there are no real originalists left. I know this because a number of prominent originalists have suggested that the 14th Amendment, as originally understood, prohibits bans […]
Ronald Turner: A Critique of Justice Antonin Scalia’s Originalist Defense of Brown v. Board of Education
Michael Ramsey
Ronald Turner (University of Houston Law Center) has posted A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education (62 UCLA L. Rev. Disc. 170 (2014)) on SSRN. Here is the abstract: How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the […]
Sean Francis Bigley: The Constitutionality of the State Secrets Privilege
Michael Ramsey
Sean Francis Bigley (Legal Aid Foundation of Los Angeles) has posted The Constitutionality of the State Secrets Privilege: The Reynolds Privilege in Originalist Context on SSRN. Here is the abstract: The following essay analyzes the state secrets privilege in its present incarnation, an evidentiary privilege capable of causing pre-discovery dismissal, in order to determine whether […]
Frederic Bloom & Nelson Tebbe: Countersupermajoritarianism (UPDATED: Larry Solum Responds)
Michael Ramsey
Frederic Bloom (University of Colorado Law School ; Brooklyn Law School) and Nelson Tebbe (Brooklyn Law School) have posted Countersupermajoritarianism (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract: How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one […]
Vincent Munoz: Church and State in the Founding-Era State Constitutions
Michael Ramsey
Vincent Phillip Munoz (Dept. of Political Science – University of Notre Dame) has posted Church and State in the Founding-Era State Constitutions on SSRN. Here is the abstract: An enormous effort has been dedicated to uncovering the original meaning of the First Amendment’s religion clauses, but, surprisingly, little research has been directed toward the Founding-era state […]
Josh Blackman on the Rules Enabling Act and the Non-Delegation Doctrine
Michael Ramsey
At Josh Blackman's Blog, Josh Blackman asks: Does the Rules Enabling Act Violate the Non-Delegation Doctrine? Here is an excerpt: The Non-Delegation doctrine is aimed at preventing one branch (Congress) from delegating the legislative power to another branch (President). But what about the Judicial branch? We know from Article II, Section II that Congress can “vest […]