Legal Theory Commons^™

Table Annexed To Article: A Survey Of The Federal Convention's Note-Takers, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787. The best known are Major Wm. Jackson and James Madison, the convention’s official Secretary and its unofficial note-taker, respectively. The efforts of all twelve note-takers are surveyed by output.

Catalogs, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

BYU Law Review

No abstract provided.

Table Annexed To Article: Counting Words In The Federalist, Peter Aschenbrenner

Peter J. Aschenbrenner

Word counts for each of the eighty-five articles published by Publius, the (collective) pseudonym of John Jay, Alexander Hamilton and James Madison, are surveyed. The 189,497 words are also broken down by author. The effort is ancillary to a project fixing the semantic values of ‘constitution’, ‘federal’ and ‘republic’ throughout the Early Republic (=1787 through 1857).

Public Reason As Higher Law, Gordon D. Ballingrud

Gordon D Ballingrud

This paper presents a model of higher-law formation by employing a modified version of John Rawls’ idea of public reason. The model specifies a theory of public reason that combines the procedural and substantive aspects of public reason, and extends the concept over a third dimension, time. This concept, by virtue of its multi-generational democratic pedigree, forms a repository of political and legal concepts of justice that conform to the duty of civility, and the broad consensus on political and legal norms required of the content of public reason, which forms the overlapping consensus. Thus, public reason as higher law …

Justice Stewart Meets The Press, Keith Bybee

Keith J. Bybee

Among the Supreme Court Justices who have articulated distinctive views of free expression, Justice Potter Stewart alone placed particular emphasis on the First Amendment's protection of a free press. Drawing upon the lessons of history, the plain language of the Constitution, the political events of his day, and his own personal experience, Stewart argued that the organized news media should be considered an essential part of the checks-and-balances competition between the legislative, executive, and judicial branches of the federal government. Stewart’s emphasis on the special structural function of the established press placed him at odds with most of his colleagues …

Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

A Corporate Right To Privacy, Elizabeth Pollman

All Faculty Scholarship

The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions — whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on …

Artificial Meaning, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry into the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux …

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

Counting Words In The Federalist, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Word counts for each of the eighty-five articles published by Publius, the (collective) pseudonym of John Jay, Alexander Hamilton and James Madison, are surveyed. The 189,497 words are also broken down by author. The effort is ancillary to a project fixing the semantic values of ‘constitution’, ‘federal’ and ‘republic’ throughout the Early Republic (=1787 through 1857).

The Doctrine Of Stare Decisis In United States Supreme Court Opinions, Peter J. Aschenbrenner

Peter J. Aschenbrenner

OCL surveys United States Supreme Court cases from 1791 to 1900 for deployment of the phrase stare decisis in opinions and published arguments before the Court. The people, as Madison conceded, make their own precedents; they do this by approving (or not disapproving) official action (in the recent past); in turn, these officials look back to official action taken at time/s more or less remote from the present for their precedents.

Machine-Readable Text Of The Federalist, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Machine-readable text of the eighty-five Federalist Papers is provided

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan