Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Legal History
Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse
Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation--textualism, purposivism, and game theory--for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.
"Plain" meaning, it …
What Is Originalism? The Evolution Of Contemporary Originalist Theory, Lawrence B. Solum
What Is Originalism? The Evolution Of Contemporary Originalist Theory, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused–-with each side of the debate making erroneous assumptions about the content of their opponent’s theories.
The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist …