Constitutional Traditionalism in the Roberts Court
Mike Rappaport
Louis J. Virelli III (Stetson University College of Law) has posted Constitutional Traditionalism in the Roberts Court (Stetson University College of Law Research Paper No. 2011-03) on SSRN. Here is the abstract: The debate over the role of traditionalism in constitutional interpretation has itself become a tradition. It remains a popular and controversial topic among […]
Recovering the Legal History of the Confederacy
Mike Rappaport
G. Edward White (University of Virginia School of Law) has posted Recovering the Legal History of the Confederacy (Virginia Public Law and Legal Theory Research Paper No. 2011-11) on SSRN. Here is the abstract: Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, […]
Reason, the Common Law, and the Living Constitution
Mike Rappaport
Matthew Steilen (Covington & Burling) has posted Reason, the Common Law, and the Living Constitution on SSRN. Here is the abstract: This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about […]
Originalism on the Web
Mike Rappaport
Anonymous On Monday Morning Philosophy, Or, Founders Tell America: “You Figure It Out”.
Class Action Defendants’ New Lochnerism
Mike Rappaport
Mark Moller (DePaul University – College of Law) has posted Class Action Defendants' New Lochnerism (Utah Law Review, Forthcoming) on SSRN. Here is the abstract: In the much-watched Dukes v. Walmart, Walmart has advanced a deceptively compelling claim: Due process, Walmart says, guarantees it the right to mount a “full defense” based on “any relevant […]
Originalism on the Web
Mike Rappaport
Adam Winkler on Popular Constitutionalism, Originalism, and the Individual Mandate.
Originalism on the Web
Mike Rappaport
Dan Collins on Biden’s Originalism. Josh Blackman and Ilya Shapiro ask Is Justice Scalia abandoning originalism?
Originalism on the Web
Mike Rappaport
Jack Goldsmith on War Power.
A Fatal Loss of Balance: Dred Scott Revisited
Mike Rappaport
Daniel A. Farber (University of California, Berkeley – School of Law) has posted A Fatal Loss of Balance: Dred Scott Revisited on SSRN. Here is the abstract: This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of […]
The Anticanon
Mike Rappaport
Jamal Greene (Columbia University – Law School) has posted The Anticanon (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract: Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy […]