Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport
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 …
What's Originalism After Transunion?: Picking An Originalist Approach That Gets Standing Back On Track, Julian Gregorio
What's Originalism After Transunion?: Picking An Originalist Approach That Gets Standing Back On Track, Julian Gregorio
Notre Dame Law Review Reflection
This Note argues that not only is standing fascinating and contested, but it is so important that the Court should reconsider standing doctrine in appropriate future cases. While the TransUnion case came and went without much kerfuffle outside of legal circles, standing does not find itself sailing smoothly. As noted, perhaps the Court’s most reliable originalist just dissented from a case that largely restates the current law on standing. And Justice Kagan, perhaps the Court’s most influential liberal, wrote that after TransUnion, standing jurisprudence “needs a rewrite.” Given the current makeup of the Court, any reconsideration of standing doctrine …
The Constitutional Law Of Interpretation, Anthony J. Bellia Jr., Bradford R. Clark
The Constitutional Law Of Interpretation, Anthony J. Bellia Jr., Bradford R. Clark
Notre Dame Law Review
The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution—often forgotten or overlooked—renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the “States” as …