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Grounding Originalism, William Baude, Stephen E. Sachs
Grounding Originalism, William Baude, Stephen E. Sachs
Faculty Scholarship
How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.
Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …
Originalism And The Law Of The Past, William Baude, Stephen E. Sachs
Originalism And The Law Of The Past, William Baude, Stephen E. Sachs
Faculty Scholarship
Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.
This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …
Law And Recognition-- Towards A Relational Concept Of Law, Ralf Michaels
Law And Recognition-- Towards A Relational Concept Of Law, Ralf Michaels
Faculty Scholarship
Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws.
Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law.
This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My …
Originalism Without Text, Stephen E. Sachs
Originalism Without Text, Stephen E. Sachs
Faculty Scholarship
Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.
James Dewitt Andrews: Classifying The Law In The Early Twentieth Century*, Richard A. Danner
James Dewitt Andrews: Classifying The Law In The Early Twentieth Century*, Richard A. Danner
Faculty Scholarship
This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in …
Originalism’S Bite, William Baude, Stephen E. Sachs
Originalism’S Bite, William Baude, Stephen E. Sachs
Faculty Scholarship
Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.
Originalism As A Theory Of Legal Change, Stephen E. Sachs
Originalism As A Theory Of Legal Change, Stephen E. Sachs
Faculty Scholarship
Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.
One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change …
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie
Faculty Scholarship
This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.
Saving Originalism’S Soul, Stephen E. Sachs
Can The Law Meet The Demands Made On It?, George C. Christie
Can The Law Meet The Demands Made On It?, George C. Christie
Faculty Scholarship
This is my contribution to a festscrift in honor of Professor Don Wallace on his retirement from the Georgetown University School of Law. My essay points out the problems and dangers of the increasing delegation to international and domestic courts, in broad and vague value-laden language, the responsibility of making basic moral and policy decisions for society. It saddles courts with a task that they are not particularly suited to perform and it is certainly not the way a democratic society should function.
Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight
Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight
Faculty Scholarship
No abstract provided.
Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter
Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter
Faculty Scholarship
No abstract provided.
Book Review, Michael E. Tigar
International Order And National Sovereignty - They Can Co-Exist, Arthur Larson
International Order And National Sovereignty - They Can Co-Exist, Arthur Larson
Faculty Scholarship
No abstract provided.