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36 posts from August 2018


Most Cited Originalist Scholars, 2013-2017 [Updated and Corrected]
Michael Ramsey

Gregory Sisk and his team at the University of St. Thomas have released their latest study of law faculty citations, covering 2012-2017 (the USD faculty is honored to place in the top 20% of U.S. law faculties by frequency of citation [at #36], by the Sisk scoring).  At Brian Leiter's Law School Reports, Professor Leiter is using this methodology, which he initially developed, to rank individual scholars by citation count in particular sub-fields (here is his ranking for Constitutional Law).  

Using the Sisk/Leiter methodology, below is my ranking of the most-cited originalist-oriented scholars.  Disclaimers:  (1) these are numbers I calculated using Professor Sisk's system, not his numbers, so they may differ slightly; (2) some scholars listed below may not self-identify as originalist-oriented scholars; the category is a bit subjective; (3) I excluded scholars who write partly but not primarily on originalist-oriented topics, but again this is a bit subjective; and (4) I may have forgotten someone (apologies in advance and please let me know!).

Per the Sisk/Leiter methodology, the number represents the number of articles in the Westlaw "law review and journals" database, from 2013 to 2017 inclusive, that cited the person listed.

Here is the list:

1.  Jack Balkin (Yale), 1740 [see update #1 below]

2.  Akhil Amar (Yale), 1607

3.  Michael McConnell (Stanford), 1153

4.  Randy Barnett (Georgetown), 1064

5.  Lawrence Solum (Georgetown), 851

6.  Steven Calabresi (Northwestern), 820

7.  John McGinnis (Northwestern), 691

8.  Gary Lawson (Boston U.), 686

9.  Saikrishna Prakash (Virginia), 612

10.  Michael Paulsen (St. Thomas), 578

11.  Caleb Nelson (Virginia), 554

12.  Philip Hamburger (Columbia), 399

13.  Michael Rappaport (San Diego), 397

14.  Michael Ramsey (San Diego), 354

15.  William Baude (Chicago), 342

16.  Josh Blackman (South Texas), 284

17.  Bradford Clark (George Washington), 272

18.  John Harrison (Virginia), 262 [see update #2 below]

19.  Julian Ku (Hofstra), 252

20.  Kurt Lash (Richmond), 221

21.  Nicholas Rosenkranz (Georgetown), 202


Highly cited scholars who write partly on originalist topics:

Eugene Volokh (UCLA), 1280

John Yoo (Berkeley), 958

Larry Alexander (San Diego), 680

Ilya Somin (George Mason), 595

Steven D. Smith (San Diego), 329


UPDATE #1:  In this post at Balkinization, Jack Balkin notes that his count was low because prior to 2001 he wrote under the name "J.M. Balkin."  Adding articles citing J.M. Balkin or Jack Balkin results in 1740 articles rather than 1585.  The list has been corrected above.

Professor Balkin also notes:

[A]mong the top five most cited originalist scholars in the American legal academy, (me, Akhil Amar, Michael McConnell, Randy Barnett, and Lawrence Solum) three are liberals and one is a libertarian. Only one is a political conservative.

What this means for originalism I leave to the reader to figure out.

UPDATE #2:  I forgot John Harrison!  He is now included.  (The count is adjusted, per Professor Sisk's methodology, to account for references to different John Harrisons).  Apologies to one of my favorite originalist scholars.


Michael Francus: Digital Realty, Legislative History, and Textualism After Scalia
Michael Ramsey

Michael Francus (Law Clerk, U.S. Court of Appeals for the Third Circuit) has posted Digital Realty, Legislative History, and Textualism After Scalia on SSRN.  Here is the abstract:

There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even as academic and judicial textualists continue to drift away from New Textualism to a newer textualism. Digital Realty v. Somers brought this newer textualism to the fore in a pair of concurrences that dueled over legislative history. The duel reopened the debate long silenced during Justice Scalia’s tenure. And it suggested two shifts. First, Justice Alito joined the textualist rejection of legislative history, a shift in his jurisprudence. Second, and presumably the cause of the first, Justice Thomas returned to the argument that intent, and thus the legislative history in which it is found, is illegitimate in principle — not just impractical. That line of argument signals a rejection of faithful agency and a shift from New Textualism’s embrace of faithful agency to a textualism that instead grounds itself in democratic interpretation. This Essay teases out what Digital Realty portends. It identifies the shift toward a New New Textualism. And it describes that textualism’s latest development, which rejects faithful agency (and with it all intent and almost all legislative history), replacing it with democratic interpretation. Last, this Essay then sketches a defense of the position that this New New Textualism, in developed form, stakes out.


Is the Space Force Constitutional?
Michael Ramsey

At Dorf on Law, Michael Dorf: Originalists in Space.  From the introduction: 

Would a Space Force be constitutional?

Here's the relevant text of the Constitution from Article I, Section 8:

"The Congress shall have the power . . . To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces . . . ."

A literal reading of that language would mean that Congress lacks the power to create a Space Force or, for that matter, an Air Force. Back in 2007, Ilya Somin responded (here) to an argument against originalism that poses the question "what about the Air Force?" Somin (and others in the comments on his post) offered a number of ways in which an originalist might justify the existence of an Air Force. Some readers responded that Somin's response took aim at a straw man. No serious nonoriginalist relied on the "Air Force problem" as a critique of originalism, these readers said. Somin responded by citing some serious scholars who in fact had leveled that critique. He also linked a couple of posts by Michael Rappaport. (Interested readers can find the illuminating exchange at the link above.)

Before going further, I want to be clear that I don't think the Air (or Space) Force problem fatally undercuts originalism. But I do want to note that the example is not quite as easy to dismiss as one might think just based on the fact that a no-Air-Force reading of the Constitution would have potentially disastrous consequences. The problem for originalists is not that they can't justify the Air (or Space) Force; the problem is that the analytical moves needed to do so render originalism indistinguishable from living Constitutionalism and other nonoriginalist approaches. What about the Air Force? thus poses for originalists the same problem that is posed by questions like What about Brown v. Board? and What about sex discrimination?

At Volokh Conspiracy, Ilya Somin responds: Originalism's Final Frontier: Is Trump's Proposed Space Force Constitutional?

... Cornell law Professor Michael Dorf raises the issue of whether it is even constitutional, at least from standpoint of originalism. He does so in the context of a longstanding debate over whether the Air Force is permissible under an originalist interpretation of the scope of federal power.

As with the debate over the Air Force (an issue raised mainly by academic critics of originalism), the point of Dorf's post is less to criticize the Space Force (though he is actually no fan of the idea) than to attack originalism. If originalism would forbid the establishment of military services that seem vital to national security, that may be a good reason to reject the theory. Dorf analyzes a brief 2007 post in which I addressed the Air Force issue and offered two reasons why an air force can be compatible with originalism. ...

Professor Somin also cites two posts by Mike Rappaport (then blogging for The Right Coast), here and here.

I agree with Rappaport and Somin.  The Air Force argument is silly.

(a) Is it constitutional for the U.S. army to have tanks?  Of course it is.  No rational person would read the Constitution's reference to "army" as limiting the U.S. army to the type of weapons that existed in 1788.  There would be no reason for the framers to draft a provision with that meaning.  (Similarly, no rational person would think that a law that all vehicles on the highway must travel at 65 mph refers only to vehicles in existence when the law was passed).

(b) Would it be constitutional for Congress to create the Mechanized Weapons Force, administratively separate from the U.S. army, as the force that operates tanks?  Of course it would be.  The army clauses don't say anything about the internal organization of the armed forces, and if Congress wants to split the "army" (in its constitutional sense) into various branches (or delegate to the President to power to do so), nothing in the Constitution prevents it.  The "U.S. Army" and the "U.S. Mechanized Weapons Force," as designated by Congress or the President, together constitute the "army"  in the constitutional sense.

Now replace "tanks" with "planes" and "Mechanized Weapons Force" with "Air Force."

But I'm less sure about the Space Force.  The key to the Air Force/Mechanized Weapons Force is that the new "forces" operate to support the actions of the conventional army (or, if at sea in the case of the Air Force, the conventional navy).  They are new only in the sense that (a) they have new weapons technology and (b) they involve some administrative separation -- neither of which could possibly be thought to be excluded by the army/navy clauses of the Constitution.  This would also be true of the Space Force, if it is supporting the operations of the conventional army and navy.  But suppose instead it is projecting force into deeper space, either for the purpose of fighting hypothetical aliens or protecting distant colonization.  One might plausibly argue that this mission is sufficiently distinct from the mission encompassed by the convention meaning of army and navy in 1788 that it's really a different power.  Congress cannot claim a power not otherwise delegated to it simply by putting the army in charge of it.

Professor Dorf seems to think this is some sort of "gotcha" moment where originalists have to confess that they are really living constitutionalists.  I don't see that at all.  If deep space military missions are beyond the power of Congress under the original Constitution, then there is an obvious remedy:  amendment.  If everyone thinks that deep space military missions are obviously appropriate (for example, if hostile aliens are discovered), then an amendment should not be a problem.  If enough people think that maybe deep space military missions are not appropriate, well, that's why we have a Constitution of limited powers -- Congress only has the powers most people think are appropriate, and Congress must make the case for new powers.

For the moment, though, I assume that the Space Force is going to do ordinary operations in support of the conventional army and navy, and in that sense it's substantively not going to do anything different from what the Air Force (or the space operations division of the U.S. army) would do if the Space Force is not created.  So the constitutional objection is either to the army using new technology (which is silly) or to the Space Force being administratively separate from the other parts of the army (which is also silly).  As Professor Somin concludes:  "There are plenty of serious objections to originalism. But originalists need not worry too much about the Air Force issue - or the Space Force."


Michael Stern on Impeachment and Self-Pardons
Michael Ramsey

At Point of Order, Michael Stern: Pardons, Self-Pardons and Impeachment, Parts 1-4 (I missed this series from last month but it still seems relevant).

Part 1 (with some discussion of posts on this blog relating to self-pardons).

Part 2 (focusing on the idea of impeachment for abuses of the power, which is really the key to this series; here is an excerpt)

There can be little doubt that impeachment will lie for abuse of the pardon power. See In re Aiken County, 725 F.3d 255, 266 (D.C. Cir. 2013) (Kavanaugh, J.) (“The remedy for Presidential abuses of the power to pardon . . . [is] ultimately impeachment in cases of extreme abuse.”). As much was suggested by the Randolph/Wilson colloquy cited in my prior post, in which Wilson said that a president who corruptly pardoned his co-conspirators would be subject to impeachment, although it is unclear whether he meant impeachment for the pardons, the underlying crime, or both.

Randolph’s concerns about potential abuse of the pardon power were echoed by George Mason at the Virginia ratifying convention. Mason said “the President ought not have the power of pardoning, because he may frequently pardon crimes which were advised by himself . . . . If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” 3 Elliot’s Debates 497. To this, Madison replied:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty . . . .

Id. at 498. ...

Part 3 (discussing President Trump's pardons)

Part 4 (assessing whether the House should open an impeachment investigation).

RELATED:  More from Michael Stokes Paulsen, at Liberty Law Blog, on impeachment: Alexander Hamilton, The Federalist, and the Power of Impeachment and The Ratification-Era Understanding of “High Crimes and Misdemeanors”.  From the introduction to the latter:

Yesterday, I set forth Alexander Hamilton’s treatment of the scope of the constitutional power of impeachment in The Federalist: the broad range of offenses embraced by that power (including “political” offenses against the system of government, injuries done “immediately to the society itself,” “encroachments” on the powers and prerogatives of other branches, and “usurpations” of authority or of the Constitution); the fact that impeachment proceedings “can never be tied down by such strict rules” in the “delineation of the offense” by the House of Representatives or “in the construction of it” by the Senate; the fact that the power of impeachment implied “awful discretion” in these matters; and the crisp distinction between impeachment proceedings and the operation of the criminal law – even though the misconduct of a civil officer sometimes might render him subject to both.

The Federalist essays touching on the impeachment power – Federalist 65 and 66, concerning the power generally, and Federalist 79 and 81 addressing impeachment as a check on misuse of judicial power specifically – furnish powerful historical evidence in support of a broad understanding of the power of impeachment, and the sweep of the phrase “high Crimes and Misdemeanors.”

But these were not just Hamilton’s views. In this post, I turn to other ratification-era debates, and some early post-ratification statements and commentary, all of which support Hamilton’s core conclusions. Significantly, nobody at the time questioned Hamilton’s assertions concerning the sweeping breadth of the power of impeachment. To the contrary, all prominent statements concerning impeachment in the state debates over ratification of the Constitution appear to be in essential agreement with Hamilton on these points.

This is mildly stunning; the historical evidence rarely lines up in this manner. There may have been some disagreement over whether the impeachment power should be so broad; and some questioned whether it was right to vest so broad a power in the Senate specifically. (That had been a concern Madison expressed at the Constitutional Convention.) But no one ever doubted – all in the ratification debates consistently affirmed – that the impeachment standard itself conferred broad discretion in the house and Senate, reaching a broad variety of potential types of misconduct including “political” misconduct not prohibited by ordinary criminal law. The illustrations employed in the ratification debates of impeachable misconduct all support a broad understanding of the term “high Crimes and Misdemeanors.” So too do important constitutional debates in the First Congress – early post-enactment, roughly contemporaneous evidence of the generally understood linguistic meaning of the impeachment standard.


Jud Campbell: The Invention of First Amendment Federalism
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted The Invention of First Amendment Federalism (Texas Law Review, forthcoming) on SSRN.  Here is the abstract:

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding-Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule. 

Mostly ignored in the literature, and never analyzed as a central feature of the opposition to the Sedition Act, the problem of partisan jury selection drove the shift in Republican thought. As originally understood, speech and press freedoms put juries primarily in charge of administering governmental limitations of expression. Following the development of political parties, however, Republicans perceived that the guarantee of a jury trial was nearly meaningless when federal jurors were hand selected by partisan federal marshals. In response, Republicans promoted a new reading of the First Amendment. Deeply suspicious of abuse by federal judges and juries, Republicans insisted that the First Amendment deprived the federal government of any authority to regulate speech or the press even though analogous speech and press clauses at the state level left considerable room for states to regulate harmful expression. 

This episode reveals a latent tension in eighteenth-century constitutionalism. Some threads of Founding-Era thought embraced the notion of a document with fixed meaning, but other features encouraged constitutional evolution as conditions changed. Rather than seeking a principled resolution of this tension, however, Republicans developed entirely new arguments and then cast them in historical terms. The invention of First Amendment federalism also raises the possibility of a different path for modern speech doctrine, guided less by a particular theory of why speech is special and more by practical concerns about political entrenchment and politically biased enforcement.


The "Entry Fiction" and the Citizenship Clause
Andrew Hyman

The Citizenship Clause of the Fourteenth Amendment says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  In a recent blog post, I wrote that the Citizenship Clause perhaps withholds birthright citizenship in the case of parents who have immigrated illegally, based either upon the phrase "subject to the jurisdiction thereof" or alternatively based upon the phrase "born…in the United States."  The former rationale is well known, but the latter is not.  Of course, Congress is free to grant citizenship at birth to any children born inside or outside the United States whom Congress believes are justly deserving of U.S. citizenship, but I do not think the Citizenship Clause grants that citizenship automatically in the situation of parents who have immigrated illegally.

In a section titled "The Meaning of ‘[B]orn ... in the United States,’" Allison Hartry wrote in her 2012 law review article that, "Although the definition at first may appear obvious, confusion over the last century suggests that this issue, left unaddressed by the Supreme Court in Wong Kim Ark, is at least as contentious as the definition of 'jurisdiction.'"  I agree, and already quoted some of those twentieth-century cases.

Looking back all the way to 1866, the Citizenship Clause was added by the U.S. Senate after the House had already approved the rest of the Fourteenth Amendment.  The person who first proposed the language that would become the Citizenship Clause was Senator Benjamin Wade, and his proposal was to replace the words "citizens of the United States" in the Privileges or Immunities Clause with the words "persons born in the United States or naturalized by the laws thereof…."  Sen. Jacob Howard then proposed a Citizenship Clause as a separate sentence at the beginning of the amendment, and Sen. William Fessenden finalized Howard’s language by inserting two words that Wade had already suggested: "or naturalized."

Wade was an interesting character.  Because of his seniority, he would have become President of the United States in 1868 if President Andrew Johnson had been convicted by the Senate (Johnson escaped that fate by a single vote in the Senate and so Wade came as close to the presidency one could imagine).  Anyway, Wade apparently believed in 1866 that the language he proposed relating to citizenship would exclude newborn children of ambassadors, because of the legal fiction that diplomats are located "near" the United States instead of "in" the United States.  Wade explained that "[i]t would make no difference in the result" if further language were added to his proposal, which he regarded as "beyond all doubt and all cavil."  Wade’s comments illustrate that his phrase "born in the United States" was not as simple a concept as it might initially seem, and his comments support the idea that this phrase referred to being legally in the United States, and not just physically in the United States.

As of 1866, the so-called "entry fiction" had not often been applied outside the diplomatic context.  But, there is evidence that imported goods were sometimes subjected to such treatment, when they were examined for admissibility at ports of entry.  One example of this was in Britain, where a provisional examination of goods was performed after those goods were unloaded from ships, but those goods were not "deemed to be landed, or delivered out of the ship" unless and until they passed the provisional examination.  This British practice was known and understood in the United States during the mid-nineteenth century, and was later replicated in United States immigration law once the federal government took over immigration regulation from the states in the 1870s and 1880s.  

If people who are being examined for eligibility to enter the United States are not yet "in" the United States, it is difficult to see how someone who has not yet been examined for eligibility could be "in" the United States.  But suppose that some states in 1866 treated immigrants as being lawfully “within” the state during proceedings to determine if they could continue to be lawfully within the state; that would still be consistent with the notion that “in the United States” meant being legally as well as physically in the United States.

Immigrants who have not yet been officially granted admission have typically been considered under U.S. law to be at the limit of U.S. jurisdiction, and likewise people who have immigrated illegally can reasonably be understood as subject to U.S. jurisdiction to the same extent as any other temporary visitor to the U.S., and also understood as being within a U.S. state’s jurisdictional reach, but nevertheless understood as not being legally inside either the U.S. or any state.  And that is exactly how they have usually been understood.


Nicholas Bagley & Abbe Gluck on the President and Obamacare
Michael Ramsey

In the New York Times, Nicholas Bagley & Abbe R. Gluck: Trump’s Sabotage of Obamacare Is Illegal: A president doesn’t have the right to dispense with laws he dislikes.  From the introduction:

From the moment he took office, President Trump has used all aspects of his executive power to sabotage the Affordable Care Act. He has issued executive orders, directed agencies to come up with new rules and used the public platform of the presidency in a blatant attempt to undermine the law. Indeed, he has repeatedly bragged about doing so, making statements like, “Essentially, we are getting rid of Obamacare.”

But Mr. Trump isn’t a king; he doesn’t have the power to dispense with laws he dislikes. He swore to preserve, protect and defend the Constitution of the United States. That includes the requirement, set forth in Article II, that the president “take care that the laws be faithfully executed.”

Faithfully executing the laws requires the president to act reasonably and in good faith. It does not countenance the deliberate sabotage of an act of Congress. Put bluntly: Mr. Trump’s assault on Obamacare is illegal.

Via Professor Gluck at Balkinization, where she adds:

This is not a question of whether a president has discretion in statutory implementation, as most Take Care claims are.  This is a question of whether a president is allowed to deliberately sabotage a law--whether he is allowed to act in bad faith. Conservative scholars, including Randy BarnettJohn Manning and Jack Goldsmith, have previously suggested that the Take Care clause means what it says:  A president has to "faithfully" execute the laws.  No plausible reading of those words includes deliberate sabotage.  In contrast, Trump has said, over and over again, that he is using his authority to "dismantle" the ACA.

From an originalist perspective I generally agree on basic principles.  The President does not have the "dispensing power" claimed by some English monarchs; that was part of the point of the take care clause.  (See this excellent essay by Michael McConnell, discussing President Obama's non-enforcement of the immigration laws as to certain classes of people). Further, the clause likely does impose a duty of good faith derived from the idea of "faithful" execution, as Professor Gluck says.

But I'm much more skeptical on the particular applications (both as to President Trump and President Obama).  To the extent the President has discretion vested in him by the statute, it seems entirely consistent with faithful execution to exercise that discretion according to his views of public policy, including in ways that limit the scope of the law.  I'm not a health care scholar, but it appears from the examples given later in the Bagley/Gluck essay that the actions to which they object are mostly exercises of discretion vested in the President by the Obamacare statute.  (At least one example may be a situation in which the President has concluded that part of the statute, or part of prior implementation, was unconstitutional; but that too is consistent with faithful execution, as the President also must faithfully uphold the Constitution).  Similarly, I'm inclined to disagree with Professor McConnell regarding Obama's immigration orders to the extent that the President was acting pursuant to discretion vested in him by statute.  Part of separation of powers' protection of liberty is that the laws are executed by a different entity from the one that enacts them, thus introducing a checking function.  (Montesquieu, Spirit of the Laws, Ch. VI).

As long as the President is acting consistently with the statute (including its delegations of discretion), he seems to me to be faithfully executing it, even if he's executing it in a way that we may speculate the enacting Congress or the present Congress might disapprove of.  The problem (if there is one) is not excessive exercise of presidential power, but rather too much delegation by Congress.

I'll add another recurring comment.  Professors Bagley and Gluck refer to a lawsuit challenging President Trump's execution of the Obamacare statute:

That is also the message of a lawsuit — the first of its kind — filed this month in federal court in Maryland. Brought by several plaintiffs including the cities of Chicago, Cincinnati and Columbus, the lawsuit recounts the “relentless and unlawful campaign to sabotage and, ultimately, to nullify” the Affordable Care Act. Taken individually, some of the Trump administration’s actions may be defensible. Taken together, they amount to a derogation of his constitutional duties.

The lawsuit asks the court to strike down the administration’s new rules and to enjoin the president from further sabotage. To prevail, the plaintiffs may have to overcome some procedural hurdles, including questions about whether the courts have the authority or the institutional competence to prevent violations of Article II’s requirement that the president “take care that the laws be faithfully executed” — especially given the wide discretion that presidents traditionally have to implement the laws.

As regular readers will guess, I strongly share the authors' doubts about courts' "authority and institutional competence" to hear such a claim -- especially their authority.  Of course, courts have authority to hear claims that the President is acting within the discretion conveyed by statute.  But if the President is acting within the discretion conveyed by statute, my view is that courts do not have authority to decide if the President is misusing that discretion.  Chief Justice Marshall wrote in Marbury, the President's exercise of discretion is a political, not a legal, question.  I think that's consistent with the original design. The alternative view would make every presidential action subject to review to determine if it is made in good faith (however that may be defined and determined), with the result that the judiciary would become a general supervisor of the executive branch.  If the President is using his lawful discretion to "sabotage" -- or, one might say, limit the scope of -- the Obamacare statute (or the immigration laws), the Constitution provides political remedies.


BYU Corpus Linguistics Conference: Call for Papers
James Heilpern

[Editor's note: This call for papers is brought to us by James Heilpern, Law and Corpus Linguistics Fellow, J. Reuben Clark Law School, Brigham Young University.]

Call for Papers: The Fourth Annual Law & Corpus Linguistics Conference

Deadline: October 10, 2018

Event Date: February 7-9, 2019

Location: Brigham Young University, Provo, UT

Organization: Brigham Young University

BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.

The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information.

[Further editor's note: For those interested in both corpus linguistics and originalism, the BYU conference will not conflict with the University of San Diego's 2019  Originalism Works in Progress Conference, which will be held February 22-23, 2019.]

Gerard Magliocca and Kurt Lash on John Bingham
Michael Ramsey

The National Constitution Center has this podcast, featuring Gerard Magliocca (Indiana/McKinney) and Kurt Lash (Richmond) discussing John Bingham with moderator Jeffrey Rosen: John Bingham, Father of the 14th Amendment.  Here is the introduction:

John Bingham was one of the most influential but least known visionaries of the post-Civil War Constitution. Dubbed “the James Madison of the 14th Amendment” by Justice Hugo Black, Bingham drafted a constitutional provision that changed the course of American history by ensuring that states were duty-bound to uphold their citizens’ constitutional rights. A moderate Republican and dedicated supporter of abolition before the Civil War, Bingham spearheaded the Reconstruction-era efforts to guarantee citizenship to all people born in the United States, regardless of race, and to extend the Constitution’s promise of equality to all American citizens.

(Via Balkinization).


David Lat Interviews Bryan Garner on "Nino and Me"
Michael Ramsey

At Above the Law, David Lat: Nino And Me: An Interview With Bryan A. Garner.  From the introduction:

August is a nice, slow month — a perfect time for lawyers to catch up on their pleasure reading, perhaps at the beach or pool. If you’re looking for something that’s a pleasure to read — but not a guilty pleasure, because it’s also very smart and informative — then check out Nino and Me: My Unusual Friendship with Justice Antonin Scalia, by Bryan A. Garner.

Garner, the longtime editor of Black’s Law Dictionary, is most famous among lawyers as a lexicographer and expert in legal writing. But Nino and Me reveals the person behind the pen, since it’s Garner’s memoir of his friendship with the late Justice Scalia, with whom he worked closely on two books: Making Your Case: The Art of Persuading Judges and Reading Law: The Interpretation of Legal Texts.

Garner’s memoir appealed to me, as it will appeal to large segments of the Above the Law readership, on two levels. First, it’s a book for people who are Article III groupies— i.e., folks who are fascinated by the federal judiciary and federal judges, especially justices of the U.S. Supreme Court. Garner gives Justice Scalia the full celebrity treatment, revealing fun facts like what the justice liked to sing in the shower (p. 112), his issues with Mexican food (p. 112), what he thinks of Serena and Venus Williams (p. 298), and whether he enjoyed Bridge of Spies (p. 336). It’s also full of delicious tidbits of “inside baseball,” like Justice Scalia’s reaction to his famous spat with Judge Richard Posner (p. 196), and whether it affected Justice Scalia’s hiring of Posner clerks to work for him at SCOTUS (p. 227). (On the other hand, if you share Professor Rick Hasen’s concerns about “judicial celebrity,” then this might not be the book for you.)

Second, Nino and Me will appeal to readers who appreciate good writing — on two levels. First, it’s a beautifully written book, full of elegant, novelistic prose. ...

Not too long ago, I had the pleasure of speaking by phone with Professor Garner about Nino and Me. Here’s a (lightly edited and condensed) write-up of our conversation.

And here is the book description from Amazon:

From legal expert and veteran author Bryan Garner comes a unique, intimate, and compelling memoir of his friendship with the late Supreme Court Justice Antonin Scalia.

For almost thirty years, Antonin Scalia was arguably the most influential and controversial Justice on the United States Supreme Court. His dynamic and witty writing devoted to the Constitution has influenced an entire generation of judges.

Based on his reputation for using scathing language to criticize liberal court decisions, many people presumed Scalia to be gruff and irascible. But to those who knew him as “Nino,” he was characterized by his warmth, charm, devotion, fierce intelligence, and loyalty.

Bryan Garner’s friendship with Justice Scalia was instigated by celebrated writer David Foster Wallace and strengthened over their shared love of language. Despite their differing viewpoints on everything from gun control to the use of contractions, their literary and personal relationship flourished. Justice Scalia even officiated at Garner’s wedding.

In this humorous, touching, and surprisingly action-packed memoir, Garner gives a firsthand insight into the mind, habits, and faith of one of the most famous and misunderstood judges in the world.