Legal History Commons^™

Cooley’S Constitutional Limitations And Constitutional Originalism, Lawrence B. Solum

Faculty Scholarship

Thomas Cooley’s A Treatise on The Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union was the most influential treatise of constitutional law in the second half of the nineteenth century. This Essay explores the ideas expressed in Cooley’s treatise in light of contemporary originalist constitutional theory. In many ways, Constitutional Limitations anticipated some of the key moves made by contemporary public meaning originalists, including the interpretation-construction distinction and the idea that ordinary meaning, and not technical meaning, is the baseline for constitutional interpretation.

Contractual Communication, Lawrence B. Solum

Faculty Scholarship

In Pseudo-Contract and Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin develop an important theory of the nature of contract that draws on Paul Grice’s influential theory of meaning. That theory has significant implications for contract doctrine, in particular for questions about the enforceability of so-called “contracts of adhesion” in particular and for “boilerplate” in general. But at the most fundamental level, Kar and Radin’s work is about the nature of contractual communication. They answer the question, “How do contracts mean?,” by proposing a theoretical structure, which they name “Shared Meaning Analysis.” This Essay focuses on …

Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler

Faculty Scholarship

Article I, Section 5 of the United States Constitution requires that each house of Congress keep a Journal of its proceedings. Contemporary observers have largely ignored this provision, treating it as a vestigial record-keeping requirement with little significance for modern law. This dismissive attitude is misguided. Historically, legislative Journals were one of the primary mechanisms by which Parliament, and later Congress, made and interpreted constitutional law. Journals are the official histories of legislatures’ activity. They record what legislatures do as institutions—what powers they exercise, what procedures they use, and what actions by the coordinate branches they protest or resist. In …

Taking Stock Of The Benefit Corporation, Ronald J. Colombo

Texas A&M Law Review

Almost a decade ago, the “benefit corporation” first appeared on American soil. Its supporters proclaimed that this would usher in a new era of corporate social responsibility. Its detractors complained that the benefit corporation would facilitate managerial abuses that corporate law had worked so hard to curb. After nearly ten years of experience with the benefit corporation, who was the more accurate prognosticator? Moreover, has the benefit corporation given rise to developments, whether beneficial or negative, that were not expected or foreseen?

This Article traces the history of the benefit corporation, with a focus on the promise that its early …

Law Is Not Enough, Neil S. Siegel

Faculty Scholarship

In this Carhart Memorial Lecture, Professor Neil Siegel seeks to explain why, over the past several years, many Americans of diverse ideological commitments have been emphasizing the importance of constitutional norms. It is because they understand that law is not enough to sustain the American constitutional project. Why is law not enough? Because the vitally important purposes that Americans ascribe to the U.S. Constitution require more than legal fidelity for their vindication. Constitutional norms are constitutional in the sense that they are closely tied to the purposes, or spirit, of the Constitution. They are constitutional in the sense that it …

The Three Ages Of Modern American Lawyering And The Current Crisis In The Legal Profession And Legal Education, Rachel F. Moran

Faculty Scholarship

During the first months of 2018, two short pieces on legal education were published. One reported on the results of a survey of college graduates, law school graduates, and holders of other advanced degrees. The study found that today’s law graduates were less likely than pre-recession counterparts to report that the J.D. degree was worth the cost and more likely to have second thoughts about the decision to go to law school. The findings prompted Aaron Taylor, executive director of the Access Lex Center for Legal Education Excellence, to conclude that there are “two distinct worlds of law graduates” made …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Faculty Scholarship

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Disseisin, Doubt, And Debate: Adverse Possession Scholarship In The United States (1881-1986), John Lovett

Texas A&M Law Review

Property law scholars in the United States have discussed the doctrine of adverse possession for more than a century. Indeed, ever since American property law scholars began to write property law treatises, formalize property law courses in modern law schools, publish property specific articles in law reviews, and publish property law case books, adverse possession has served as a staple of property law discourse. This Article examines how property law scholars think about and discuss adverse possession. It explores how adverse possession talk has changed—and not changed—over time. In other words, this Article examines both the substance and rhetoric of …

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

Surprising Originalism, Lawrence B. Solum

Faculty Scholarship

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …

Evaluating The Cayman Islands Bill Of Rights, Freedoms And Responsibilities: More Evolution Than Revolution, Vaughan Carter

Texas A&M Law Review

Evaluating the Cayman Islands Bill of Rights, Freedoms and Responsibilities: More Evolution than Revolution

Originalist Methodology, Lawrence B. Solum

Faculty Scholarship

This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Faculty Scholarship

If you ask legal ethics scholars what they remember about Louis D. Brandeis's judicial confirmation hearings, most would point to the manner in which he responded to questions about his representation of persons with perceived conflicts of interest. Louis Brandeis responded to challenges by stating that he was "counsel for the situation. Some use this comment when examining problems associated with a single lawyer representing multiple clients in the same transaction. Others believe that Brandeis may have been referring to a type of intermediary role in which lawyers attempt to adjust the rights and interests of multiple clients with potentially …

Hegelian Dialectical Analysis Of U.S. Voting Laws, Charles Edward Andrew Lincoln Iv

Student Scholarship

This Comment uses the dialectical paradigm of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) to analyze the progression of United States voting laws since the colonial foundations of a participatory democratic process in this country. This analysis can be used to interpret past progression of voting rights in the United States as well as a provoking way to predict future trends in United States voting rights - as an ongoing "progressive" political process or rhetorical method of erasing categories or classifications and eliminating distinctions amongst persons.

Historical Gloss, Constitutional Conventions, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to …

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum

Faculty Scholarship

This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows:

(1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice.

(2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of …

A Structural Etiology Of The U.S. Constitution, Charles Edward Andrew Lincoln Iv

Student Scholarship

This article offers an interpretation of the problems addressed by and the eventual purpose of the United States government. Simultaneously, it seeks to analyze and explain the continued three-part structure of the United States federal government as outlined in the Constitution. Subsequently I define the three parts of the federal government—judiciary, executive, and legislative—as explained through the lens of the Platonic paradigm of (logos = word = law), (thymos = external driving spirit = executive), and (eros = general welfare = legislative) extrapolated from Plato’s dialogues.

First, the article establishes Plato’s theory of the three-part Platonic soul as a major …

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum

Faculty Scholarship

The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice — paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis — the …

Intellectual History As Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

The article discusses the intellectual history of constitutional theory and doctrine in America, and it mentions how intellectual history could constitute a theory and method of constitutional interpretation in the U.S. A law review article by Professor Saul Cornell, which addresses constitutional history and the originalism constitutional interpretation theory, is mentioned. The definition of the word "meaning" is examined, along with the U.S. Constitution and communicative content.

Commerce, Commonality, And Contract Law: Legal Reform In A Mixed Jurisdiction, Christopher K. Odinet

Faculty Scholarship

This Article explores the tradition/reform dichotomy as it exists in certain jurisdictions that, because of their unique history and nature, are particularly susceptible to the struggle between legal tradition and legal reform — mixed jurisdictions. In order to more closely examine the tradition/reform dichotomy and its theoretical and practical effects, this Article analyzes the role that traditional legal institutions play in the legal reform process through the lens of America’s lone mixed jurisdiction — Louisiana.

By exploring Louisiana’s subtle, yet prevalent, anchor-like legal conundrum caused by the struggle between progress and tradition — the process of mooring oneself to existing …

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally …

Angela Harris: The Person, The Teacher, The Scholar, Rachel F. Moran

Faculty Scholarship

Angela Harris has written eloquently about the creative tensions that define her as a person, a teacher, and a scholar. She has explored the challenges of maintaining a private identity when called upon to share her life experience with a public audience, whether in the classroom, at a conference, or in an essay. She has reflected on the ways in which legal teaching privileges reason over emotion, wondering whether this dynamic impoverishes the exchange of ideas and undervalues the joy that can motivate a caring advocate. And, she has explored the dialectic between identity politics and the structural forces that …

Foreword: A Tribute To Margaret Montoya, Rachel F. Moran

Faculty Scholarship

Dean Moran provides opening remarks to the Chicana/o-Latina/o Law Review symposium, "Un/Masking Power: The Past, Present, and Future of Marginal Identities in Legal Academia."

The Interpretation-Construction Distinction In Patent Law, Tun-Jen Chiang, Lawrence B. Solum

Faculty Scholarship

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims. In this Article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the …

Originalism And Constitutional Construction, Lawrence B. Solum

Faculty Scholarship

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …