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Full-Text Articles in Law
The Constitution As Based On The Consent Of The Governed—Or, Should We Have An Unwritten Constitution?, Thomas B. Mcaffee
The Constitution As Based On The Consent Of The Governed—Or, Should We Have An Unwritten Constitution?, Thomas B. Mcaffee
Scholarly Works
It is useful to embrace continuity in describing basic differences we have in giving effect to the Constitution, especially if particular ways of communicating help us convey and understand what is at stake. The individual who originated the term “non-interpretivist” to describe judicial review implementing the unwritten constitution, for example, continues to believe that the best approach to constitutional interpretation is not “textualist,” but is properly characterized as “supplemental.” In his view, “much American constitutional adjudication, including but not limited to decisions under due process liberty and the right of privacy, involves the interpretation of an unwritten and essentially common …
On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley
On Parol: The Construction And Interpretation Of Written Agreements And The Role Of Extrinsic Evidence In Contract Litigation, Keith A. Rowley
Scholarly Works
As a general rule, extrinsic evidence, whether written or oral, is not admissible to prove either the intent of the parties to a contract or the meaning of contractual terms when the parties have executed an unambiguous, fully-integrated (i.e., final and all-inclusive) written agreement. The trial court may consider various types of extrinsic evidence, however, in determining whether a particular agreement is fully integrated or ambiguous, and even in choosing among rival interpretations of an agreement where ambiguity is not present. If the trial court determines that an agreement is not fully integrated, then the trier of fact may consider …
The Original Meaning Of The Ninth Amendment, Thomas B. Mcaffee
The Original Meaning Of The Ninth Amendment, Thomas B. Mcaffee
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This Article presents the case for the residual rights reading of the ninth amendment as against the affirmative rights interpretation. The author evaluates the merits of these opposing views to determine whether the proponents of the new orthodoxy have really made the case for discarding the received reading. This analysis of the recent literature also raises questions about the way in which constitutional scholarship is conducted. The author concludes that the original meaning of the ninth amendment lends critical support to the project of originalist jurisprudence in the individual rights area and undercuts modem claims linking the ninth amendment to …