Jurisprudence | Open Access Articles | Digital Commons Network™

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport Dec 2023

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

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 enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

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The Dark Side Of Due Process: Part Iii, How To Use Irreverent Double-Talk To Speak Back To Bad Men, Joshua J. Schroeder Dec 2022

The Dark Side Of Due Process: Part Iii, How To Use Irreverent Double-Talk To Speak Back To Bad Men, Joshua J. Schroeder

St. Mary's Law Journal

Most American lawyers take for granted that the common law established almost all the ordinary causes of action we know today. As Joseph Story’s Commentaries acknowledged, the common law is the basis of the entire U.S. system of law. Common law struggled with feudal and canon forms and eventually transformed them for the benefit of ordinary people even in the face of the most heinous travesties of the English and American past.

The Witch Judges of Salem, Massachusetts and the Parliament of Saints in England did not prevail through despotic radicalism to demolish the common law through codification. Legal positivism …

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The Law Of Interpretation, William Baude, Stephen E. Sachs Jan 2017

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting …

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Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen Jan 2014

Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen

Book Chapters

If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …

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Things Judges Do: State Statutory Interpretation, Judith S. Kaye Jan 1997