Adam Serwer in the Atlantic Criticizes Justice Thomas (and indirectly me)
Mike Rappaport
In the Atlantic, Adam Serwer has written a screed against an argument made by Justice Thomas in his concurrence in the affirmative action case. The title of the piece captures its tenor – “The Most Baffling Argument a Supreme Court Justice Has Ever Made.” In a way, this piece is remarkable – in a short […]
Judge Lee Sarokin: RIP
Mike Rappaport
I just saw the news that former Judge Lee Sarokin had passed away. I first became aware of Judge Sarokin when I clerked on the Third Circuit in the middle 1980s. He was known as an activist district judge. He subsequently was elevated to the Third Circuit. It was only after he retired and moved […]
The Major Questions Doctrine Beneficially Constrained
Mike Rappaport
The Supreme Court gave me two big presents last week. In addition to holding that state affirmative action was unconstitutional, the Court took a step back from the unjustified version of the Major Questions Doctrine in the Biden v. Nebraska, the student loan cancellation case. In Nebraska, Chief Justice Roberts for the majority did not […]
Technical Difficulties
Mike Rappaport
The blog was down for a while due to technical difficulties with Typepad. But we are back up now. Thanks for your understanding.
Justifying the History in Bruen
Mike Rappaport
A great deal of attention has been paid to the account of history in Justice Thomas’s opinion in Bruen. What justifies, under an originalist approach, looking at the history (1) leading up to and following the 2nd Amendment’s enactment and (2) leading up to and following the 14th Amendment’s enactment? One way to understand it […]
John McGinnis and Michael Rappaport: An Originalist Approach to Prospective Overruling
Mike Rappaport
John McGinnis (Northwestern) and Michael Rappaport (USD) have posted An Originalist Approach to Prospective Overruling (Notre Dame Law Review 2023) on SSRN. Here is the abstract: Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating […]
Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act
Mike Rappaport
Recently, I published a piece on Chevron and the original meaning of the Administrative Procedure Act. While most originalist work has focused on the Constitution, there is some work on statutory originalism in general and on the APA in particular. See, e.g. this piece by Evan Bernick. My article explores whether Chevron can be reconciled […]
A Poem on Constitutional Originalism
Mike Rappaport
My apologies for posting another work by the AI ChatGPT, but I really liked this. Perhaps that is because I am particularly challenged as a poet and so it seemed better than other efforts by ChatGPT. I asked ChatGPT to write a poem on constitutional originalism. Here was the result (in seconds time of course). […]
ChatGPT on Original Methods Originalism
Mike Rappaport
Having been impressed with ChatGPT's essay on Originalism, I decided to try a harder topic, one I am personally very interested in. I asked the AI to write an essay on the theory of interpretation that John McGinnis and I have developed — Original Methods Originalism. To my surprise, it did a pretty good job […]
ChatGPT on Constitutional Originalism in the United States
Mike Rappaport
What follows was written by the AI: Constitutional originalism is a theory of constitutional interpretation that holds that the meaning of the United States Constitution should be determined based on the original intent of the framers of the Constitution at the time it was drafted and ratified. This means that when interpreting the Constitution, judges […]