The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information
Mike Rappaport
In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location). In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration. But Carpenter has an important […]
The Original Meaning and the Carpenter Case: “Their Papers”
Mike Rappaport
(This is the first of several posts about the Carpenter case.) The Carpenter v. United States case, which was argued before the Supreme Court last week, may turn out to be one of the most important Fourth Amendment cases. One of the issues raised by the case involves the Fourth Amendment’s third party doctrine. Does […]
Originalism and Proportionality Analysis
Mike Rappaport
One of the important differences between American constitutional law and the constitutional law of much of Europe and of many countries throughout the world is the use of proportionality analysis outside of America. Proportionality analysis can be thought of in several ways, but it is primarily a doctrinal tool used to analyze whether an individual […]
Gregory Maggs: A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning
Michael Ramsey
Gregory E. Maggs (George Washington University Law School) has posted A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning (49 Conn. L. Rev. 1069 (2017)) on SSRN. Here is the abstract: Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the […]
India’s Supreme Court Discovers Right to Privacy
Mike Rappaport
Recently, I have been studying comparative constitutional law. It is a fascinating area, providing real world examples for the issues that constitutional theory explores. What is more, the practices of other constitutional judiciaries are often unexpected. I often find myself saying, “do they really do that?” One example is the recent constitutional case, decided by […]
The Original Fourth Amendment and Unreasonable Searches and Seizures
Mike Rappaport
Recently, Laura Donahue, a professor at Georgetown Law and an expert on digital privacy, came to the Originalism Center at the University of San Diego to talk about her recent article, "The Original Fourth Amendment." The article is a long one, nearly 150 pages long in a law journal, and it covers the development of […]
Jeffrey Toobin: Originalist Assassin
Mike Rappaport
Recently, Ann Althouse had a great post criticizing Jeffrey Toobin’s account of oral argument in the Supreme Court's political gerrymandering case. Toobin had criticized Neal Gorsuch, portraying him as violating norms and as ineffective. But Althouse makes a strong case that this is largely in Toobin’s imagination. Sadly, this is not the first time Toobin […]
Justice Scalia and How Originalism Fits into the Fabric of the Law
Mike Rappaport
In my last post, I explored whether Justice Scalia was an old or a new originalist, concluding that he was a new originalist in one way, but an old originalist in another way. In this post, I want to look at another way that Scalia advocated an older type originalism. One feature of newer originalist […]
Larry Solum on Corpus Linguistics
Michael Ramsey
At Legal Theory Blog, Legal Theory Lexicon: Corpus Linguistics. From the introduction: … How do we determine the meaning of legal texts? One possibility is that judges could consult their linguistic intuitions. Another possibility is the use of dictionaries. Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic […]
Lawrence Solan & Tammy Gales: Corpus Linguistics as a Tool in Legal Interpretation
Michael Ramsey
Lawrence M. Solan (Brooklyn Law School) and Tammy A. Gales (Hofstra University) have posted Corpus Linguistics as a Tool in Legal Interpretation (Brigham Young University Law Review, 2018 forthcoming) on SSRN. Here is the abstract In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed […]