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12/19/2020

James Cleith Phillips & John Yoo: The Ordinary Meaning of the Antiquities Act of 1906
Michael Ramsey

James Cleith Phillips (Chapman University, The Dale E. Fowler School of Law) and John Yoo (University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace) have posted The Ordinary Meaning of the Antiquities Act of 1906: A Corpus Linguistic Analysis (37 pages) on SSRN.  Here is the abstract:

The Antiquities Act of 1906 authorized presidents to declare to be national monuments objects that were situated upon lands owned or controlled by the federal government. Further, the Act allowed the president to reserves parcels of land around the object to protect it. In recent years, Presidents Bush and Obama have relied on the Act to declare objects such as coral reefs and sea canyons to be national monuments, reserving millions of square miles of ocean for their protection.

This essay seeks to determine what the ordinary meaning of the Act was in 1906. Relying on the Corpus of Historical American English (COHA), the paper finds that American English leading up to and around the time of the adoption of the Act did not use the terms and phrases in the Act to refer to anything found under the ocean. The ordinary meaning of the Act, then, would appear to not authorize the marine monuments created by recent presidents.

(Via Larry Solum at Legal Theory Blog.)