Samuel L. Bray: Equity and the Seventh Amendment
Michael Ramsey
Samuel L. Bray (Notre Dame Law School) has posted Equity and the Seventh Amendment on SSRN. Here is the abstract: This Article reconsiders the scope of the jury trial right under the Seventh Amendment. It argues that a more historically sound and judicially administrable test can be formulated. The jury trial right should be presumed, with […]
New Book: “The Most Dangerous Branch” by David Kaplan
Michael Ramsey
Recently published, by David A. Kaplan: The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution (Crown 2018). Here is the book description from Amazon: In the bestselling tradition of The Nine and The Brethren, The Most Dangerous Branch takes us inside the secret world of the Supreme Court. David A. Kaplan, the former legal affairs editor of Newsweek, […]
Michael Long on Thurgood Marshall on Originalism
Michael Ramsey
In the Los Angeles Times, Michael Long: Let's let Thurgood Marshall explain what's wrong with Brett Kavanaugh's originalism. From the introduction: Whenever a Supreme Court seat must be filled, we’re confronted with a fundamental battle over the meaning of the Constitution: Is it a living document, or can it only be plumbed for the founders’ “original […]
Will Baude on Originalism and the Kavanaugh Hearings
Michael Ramsey
At Volokh Conspiracy, Will Baude: The Best Parts of the Kavanaugh Hearing. I confess that I have previously mocked the idea that judicial confirmation hearings can be a good tool of public education, and I might have been too hasty to do so. This afternoon I happened to tune in to a discussion between Senator Mike […]
The Word “Textualist” is too Vague
Andrew Hyman
In this big world, there are both “textualist originalists” and “textualist nonoriginalists,” who are very different from each other. A textualist nonoriginalist will read a phrase in the law, and will pick out which meanings of those words strike him as fair (or preferable) in context of the surrounding words. The nonoriginalist textualist will thus […]
Emily Bazelon & Eric Posner on Judge Kavanaugh
Michael Ramsey
In the New York Times, Emily Bazelon & Eric Posner: Who Is Brett Kavanaugh? Contrary to what supporters say, he’s no originalist. From the introduction: Brett Kavanaugh’s supporters call him an originalist. It’s a natural label to apply to the conservative judge who is President Trump’s choice for the Supreme Court. In theory, originalism gives judges a method for transcending […]
Mark Pulliam on Robert Bork
Michael Ramsey
At City Journal, Mark Pulliam: The Original Originalist: Thirty years after Robert Bork was denied a seat on the Supreme Court, his formidable legacy lives on. From the introduction: Bork’s defeat [for the Supreme Court] was a watershed event in judicial politics, and reverberates still—it prevented a conservative realignment of the Court (due to the appointment […]
Jeremy Telman: John Marshall’s Constitution
Michael Ramsey
D.A. Jeremy Telman (Valparaiso University Law School) has posted John Marshall's Constitution: Distinguishing Originalism from Ipse Dixit in Constitutional Adjudication on SSRN. Here is the abstract: This Article is the first comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835) from the perspective of originalism. Until recently, there seemed to be no need for such a […]
George Rutherglen Reviews “The Framers’ Coup: The Making of the United States Constitution” by Michael J. Klarman
Michael Ramsey
George A. Rutherglen (University of Virginia School of Law) has posted In What Sense a Coup? A Review of The Framers’ Coup: The Making of the United States Constitution by Michael J. Klarman (Journal of Law and Politics, Forthcoming) in SSRN. Here is the abstract: In his majesterial history of the fraught and compromised origins of […]
T.J. McCarrick: A Textual and Constitutional Foundation for Chevron
Michael Ramsey
T.J. McCarrick (Kirkland & Ellis LLP) has posted In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron (San Diego Law Review, forthcoming) on SSRN. Here is the abstract: The bedrock of modern administrative law faces a judicial mutiny. For decades, the Chevron doctrine required federal courts to defer to an agency's reasonable […]