Originalism on the Web
Mike Rappaport
Gary McDowell and Edwin Meese, III on The Language of Law and the Foundations of American Constitutionalism.
The Impeachment of Samuel Chase: Redefining Judicial Independence
Mike Rappaport
Adam A. Perlin has posted The Impeachment of Samuel Chase: Redefining Judicial Independence (Rutgers Law Review, Vol. 62, No. 3, p. 725, 2010) on SSRN. Here is the abstract: This article hopes to make the following contributions to the existing academic scholarship: First, some legal scholars have ignored how the impeachment contributed to the modern […]
When Originalism Attacks: How Justice Scalia’s Resort to Original Expected Application in Crawford v. Washington Came Back to Bite Him in Michigan v. Bryant
Mike Rappaport
Brendan T. Beery (Thomas M. Cooley Law School) has posted When Originalism Attacks: How Justice Scalia's Resort to Original Expected Application in Crawford v. Washington Came Back to Bite Him in Michigan v. Bryant (Drake Law Review, Forthcoming) on SSRN. Here is the abstract: Justice Scalia personifies the philosophical anxieties that lead judges to adopt […]
Essay on the Pragmatism of Original Intent: Returning to the Trespass Standard of the Fourth Amendment
Mike Rappaport
Jeremy M. Miller (American Institute of Law) has posted Essay on the Pragmatism of Original Intent: Returning to the Trespass Standard of the Fourth Amendment on SSRN. Here is the abtract: Privacy, as a concept, has been perverted. Trespass as the perennial 4th Am. protection offers much greater liberty-value protection.
Originalism on the Web
Mike Rappaport
Kristen HJ Kwak on We The People, They The People: Revisiting Justice Scalia's Textualism.
In Defense of Judicial Prudence
Mike Rappaport
Nick Buccola (Linfield College) has posted In Defense of Judicial Prudence (Western Political Science Association 2011 Annual Meeting Paper) on SSRN. Here is the abstract: There are interesting connections between 3 major philosophies of judicial review-majoritarianism, originalism, and perfectionism-and 3 cardinal virtues of classical Greek and Christian thought-temperance, fortitude, and justice.We show how and why […]
Toward a Reality-Based Constitutional Theory
Mike Rappaport
Andrew B. Coan (University of Wisconsin Law School) has posted Toward a Reality-Based Constitutional Theory (University of Wisconsin Legal Studies Research Paper No. 1156) on SSRN. Here is the abstract: Despite the alleged triumph of legal realism and the empirical turn of closely related fields such as judicial behavior, a startling number of constitutional theorists […]
Executive Power and the Law of Nations in the Washington Administration
Mike Rappaport
Robert Reinstein (Temple University – James E. Beasley School of Law) has posted Executive Power and the Law of Nations in the Washington Administration (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract: The dramatic unilateral decisions of the Washington administration, particularly during the Neutrality Crisis of 1792-1794, have been the bases […]
Jack Balkin’s Interaction Theory of ‘Commerce’
Mike Rappaport
Randy E. Barnett (Georgetown University Law Center) has posted Jack Balkin's Interaction Theory of 'Commerce' (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract: In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the Commerce Clause. He […]
Originalism on the Web
Mike Rappaport
Joseph Blocher responds to Reva B. Siegel's Dead or Alive: Originalism as Popular Constitutionalism in Heller in Popular Constitutionalism and the State Attorneys General.