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01/06/2021

The Year in Review: Originalism Articles of 2020 (Part 2) - the "Top 25"?
Michael Ramsey

For this list, I tried for a (sort of) objective measure.  These are the twenty-five most downloaded originalism-oriented new papers on SSRN for 2020.  I defined the category "originalism-oriented" as papers that have the terms "originalism," "originalist," "textualism," or "textualist" in the title, abstract or keywords on SSRN.  "New" papers are those posted in the last year.  Then I cross-checked the list against papers featured on the Originalism Blog and added a few highly downloaded papers from 2020 that didn't use the magic words in the title, abstract or keywords but are obviously originalism-oriented.

Of course this measure has substantial limitations, including that it favors papers posted early in the year; that not all important papers are posted on SSRN; and that number of downloads does not really prove anything about a paper except, well, how many times it was downloaded.  But with those caveats, here's the list:

1.  Julian Davis Mortenson (Michigan) and Nicholas Bagley (Michigan), Delegation at the Founding

2.  Orin Kerr (Berkeley), Decryption Originalism: The Lessons of Burr 

3.  Cass Sunstein (Harvard), Textualism and the Duck-Rabbit Illusion

4.  Tara Leigh Grove (Alabama), Which Textualism?

5.  Ilan Wurman (Arizona State), Nondelegation at the Founding 

6.  Stephanie Barclay (BYU [now Notre Dame]), The Historical Origins of Judicial Religious Exemptions 

7.  Jack Balkin (Yale), Lawyers and Historians Argue About the Constitution 

8.  William Baude (Chicago), Precedent and Discretion

9.  Neil Buchanan (Florida) and Michael Dorf (Cornell), A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism

10.  Michael Morley (Florida State), The Independent State Legislature Doctrine, Federal Elections, and State Constitutions

11.  Andrew Koppelman (Northwestern), Why Do (Some) Originalists Hate America?

12.  Jed Shugerman (Fordham), The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) 

13.  Nicholas Parrillo (Yale), A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

14.  Nelson Lund (George Mason), Unleashed and Unbound: Living Textualism in Bostock v. Clayton County

15.  Aaron Tang (Davis), Harm-Avoider Constitutionalism

16.  Michael Ramsey (San Diego), Originalism and Birthright Citizenship 

17.  Aaron Gordon (Yale JD ‘20), A Rebuttal to 'Delegation at the Founding'

18.  Stephen Griffin (Tulane), Optimistic Originalism and the Reconstruction Amendments 

19.  Josh Blackman (South Texas), Presidential Subpoenas during the Burr Trials

20.  Stephen Sachs (Duke), The Unlimited Jurisdiction of the Federal Courts

21.  Evan Bernick (Georgetown), Antisubjugation and the Equal Protection of the Laws 

22.  Andrew Koppelman (Northwestern), Bostock, LGBT Discrimination, and the Subtractive Moves

23.  Schlomo Klapper (Yale, students), Soren Schmidt (independent) and Tor Tarantola (Cambridge – Psychology), Ordinary Meaning from Ordinary People

24.  Samuel Bray (Notre Dame) and Paul Miller (Notre Dame), Against Fiduciary Constitutionalism 

25.  Michael Rappaport (San Diego), A Two Tiered and Categorical Approach to the Nondelegation Doctrine

Let me known of ones I've overlooked.  In my next and final post in this series, I'll highlight some papers that didn't make this list but seemed to me to be especially important.