Towards a Common Law Originalism

Originalists\u27 emphasis upon William Blackstone\u27s Commentaries on the Laws of England tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested a conception of its identity as much more flexible and susceptible to change than originalists posit. The alternative that this Article proposes - common law originalism - treats the strands of eighteenth-century common law not as providing determinate answers that fix the meaning of particular constitutional clauses but instead as supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively. It likewise suggests that the interpretation of common law phrases should be responsive to certain alterations in external conditions, rather than static and inflexible. Situated between living constitutionalism and originalism as currently practiced, common law originalism attempts to square fidelity to the Founding era with fidelity to its common law jurisprudence - a jurisprudence that retained continuity yet emphasized flexibility and was inclusive enough to hold disparate legal conceptions in its embrace

Book Review: The Myth of Law and Literature

In The Myth of Moral Justice, Thane Rosenbaum generates an ambitious and idealistic plan for a rapprochement between law and morality, between emotion and reason, and between law and its literary representations. Laudable and inspiring, Rosenbaum\u27s project remains flawed in several ways that are traceable back to his reliance on aspects of law and literature scholarship. Unfortunately, Rosenbaum\u27s attempt to replace the myth of moral justice with a truly moral legal system depends itself on a particular set of myths about law and literature. After examining two recent critiques of the law and literature movement, one from the vantage point of law and the other from the perspective of literary studies, this review suggests an alternative approach that would attend to law\u27s institutional dimensions

Substitute Chancellors: The Role of the Jury in the Contest between Common Law and Equity

The common law - thought to provide an ancient constitution securing the liberties of the people from monarchical tyranny - and opposition against it, played an acknowledged part in the debates among Royalists, Parliamentarians, and Puritans during seventeenth-century England. Very little attention has, however, been devoted to the status of the jury within these arguments either for the supremacy of the common law or for the King\u27s prerogative, institutionally embodied most prominently in the Star Chamber and the Court of Chancery. As this Article argues, the procedural virtues and the philosophical goals of the jury and of the Chancellor as expressed by their advocates were very similar, but the disparities in the origins of their authority - the jury a body designed to represent local men of the community and the Chancellor considered almost a cipher for the King - led opponents in the English Revolution and its aftermath to resist one institution or the other. Fluctuations in the relative strength and weakness of the common law jury and judges in equity thus came to depend on political struggles rather than disagreement about methods of adjudication. As a result, by the time of the Founding, opponents of the proposed Supreme Court expressed their reservations about its elevated status and its jurisdiction over fact and law by raising the specter of Chancery and its association with monarchical power

Economic Emergency and the Rule of Law

Academic work extolling the merits of the rule of law both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by governmental interference. Much of public law scholarship has, in turn, examined whether and in what form the rule of law, which is often seen as a basic requirement for a liberal political order, can be retained during times of emergency. While the economic development and state of emergency contexts for rule of law discussions appear quite distinct, they do converge in at least one situation, that of economic emergency. Paradigmatic cases of economic emergency include the Great Depression, the Argentine fiscal crisis of 2001, and the East Asian currency crisis of the late 1990s. Arguably more marginal instances might comprehend the economic consequences of Hurricane Katrina, the economic dimensions of a potential bird flu pandemic, or the threatened financial chaos of the Y2K computer crisis. Either the economic development or emergency-oriented approach to the rule of law could lead to the conclusion that none of these situations justify abrogation of core rule of law values - but this, of course, puts aside the question of which values do lie at the center of the rule of law. This Article contends that, in the United States context, the rule of law should be conceived flexibly enough to permit governmental intervention that may temporarily disrupt the economic but not personal liberty or political participation rights of individuals during these situations of economic emergency. Without addressing whether and to what extent the government should interfere in the economic sphere, this Article argues that several justifications based in the democratic vision underlying our constitutional system warrant treating the suspension of economic rights differently from the suspension of rights such as those of habeas corpus or the vote

Economic Emergency and the Rule of Law

Academic work extolling the merits of the rule of law both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by governmental interference. Much of public law scholarship has, in turn, examined whether and in what form the rule of law, which is often seen as a basic requirement for a liberal political order, can be retained during times of emergency. While the economic development and state of emergency contexts for rule of law discussions appear quite distinct, they do converge in at least one situation, that of economic emergency. Paradigmatic cases of economic emergency include the Great Depression, the Argentine fiscal crisis of 2001, and the East Asian currency crisis of the late 1990s. Arguably more marginal instances might comprehend the economic consequences of Hurricane Katrina, the economic dimensions of a potential bird flu pandemic, or the threatened financial chaos of the Y2K computer crisis. Either the economic development or emergency-oriented approach to the rule of law could lead to the conclusion that none of these situations justify abrogation of core rule of law values - but this, of course, puts aside the question of which values do lie at the center of the rule of law. This Article contends that, in the United States context, the rule of law should be conceived flexibly enough to permit governmental intervention that may temporarily disrupt the economic but not personal liberty or political participation rights of individuals during these situations of economic emergency. Without addressing whether and to what extent the government should interfere in the economic sphere, this Article argues that several justifications based in the democratic vision underlying our constitutional system warrant treating the suspension of economic rights differently from the suspension of rights such as those of habeas corpus or the vote

Towards a Common Law Originalism

Originalists\u27 emphasis upon William Blackstone\u27s Commentaries on the Laws of England tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested a conception of its identity as much more flexible and susceptible to change than originalists posit. The alternative that this Article proposes - common law originalism - treats the strands of eighteenth-century common law not as providing determinate answers that fix the meaning of particular constitutional clauses but instead as supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively. It likewise suggests that the interpretation of common law phrases should be responsive to certain alterations in external conditions, rather than static and inflexible. Situated between living constitutionalism and originalism as currently practiced, common law originalism attempts to square fidelity to the Founding era with fidelity to its common law jurisprudence - a jurisprudence that retained continuity yet emphasized flexibility and was inclusive enough to hold disparate legal conceptions in its embrace

The Limits of Group Rights: Religious Institutions and Religious Minorities in International Law

Scholars and advocates of religious liberty within the United States are beginning to suggest that our constitutional discourse has focused too intently on individual rights and that our attention should now turn to the interests of religious institutions and the notion of church autonomy. The reoriented jurisprudence encouraged by such proposals is not without parallel in other national contexts, including those of Europe. Heeding calls to attend to church autonomy could thus bring the United States into closer harmony with its European counterparts. Placing priority on church autonomy might, however, generate unforeseen obstacles to the exercise of religious liberty. In particular, emphasizing religious institutions may lead to the unequal treatment of individuals and entities of minority religious persuasions. As this Symposium Article\u27s analysis of pertinent cases from the jurisprudence of international tribunals demonstrates, the monolithic conception of religious associations that has emerged from an institutionally oriented approach to religious liberty has resulted in the neglect of the equality of free exercise on the individual level and, concomitantly, disregard for the freedom of religious dissent and sub-group formation. The piece concludes with a suggestion about how to avoid the pitfalls of both the individually and institutionally based approaches

The Limits of Group Rights: Religious Institutions and Religious Minorities in International Law

Scholars and advocates of religious liberty within the United States are beginning to suggest that our constitutional discourse has focused too intently on individual rights and that our attention should now turn to the interests of religious institutions and the notion of church autonomy. The reoriented jurisprudence encouraged by such proposals is not without parallel in other national contexts, including those of Europe. Heeding calls to attend to church autonomy could thus bring the United States into closer harmony with its European counterparts. Placing priority on church autonomy might, however, generate unforeseen obstacles to the exercise of religious liberty. In particular, emphasizing religious institutions may lead to the unequal treatment of individuals and entities of minority religious persuasions. As this Symposium Article\u27s analysis of pertinent cases from the jurisprudence of international tribunals demonstrates, the monolithic conception of religious associations that has emerged from an institutionally oriented approach to religious liberty has resulted in the neglect of the equality of free exercise on the individual level and, concomitantly, disregard for the freedom of religious dissent and sub-group formation. The piece concludes with a suggestion about how to avoid the pitfalls of both the individually and institutionally based approaches

Substitute Chancellors: The Role of the Jury in the Contest between Common Law and Equity

The common law - thought to provide an ancient constitution securing the liberties of the people from monarchical tyranny - and opposition against it, played an acknowledged part in the debates among Royalists, Parliamentarians, and Puritans during seventeenth-century England. Very little attention has, however, been devoted to the status of the jury within these arguments either for the supremacy of the common law or for the King\u27s prerogative, institutionally embodied most prominently in the Star Chamber and the Court of Chancery. As this Article argues, the procedural virtues and the philosophical goals of the jury and of the Chancellor as expressed by their advocates were very similar, but the disparities in the origins of their authority - the jury a body designed to represent local men of the community and the Chancellor considered almost a cipher for the King - led opponents in the English Revolution and its aftermath to resist one institution or the other. Fluctuations in the relative strength and weakness of the common law jury and judges in equity thus came to depend on political struggles rather than disagreement about methods of adjudication. As a result, by the time of the Founding, opponents of the proposed Supreme Court expressed their reservations about its elevated status and its jurisdiction over fact and law by raising the specter of Chancery and its association with monarchical power

Transparency and Textuality: Wilkie Collins\u27 Law Books

This article takes as its starting point the priority that Anglo-American legal thought has, in recent centuries, placed upon transparency, a priority that has relied, in large part, on the notion that the law should increasingly be recorded and publicly accessible. Through his representation of trial narratives - an extremely popular quasi-literary form during the nineteenth century - as well as the work of William Blackstone in his supposedly comprehensive Commentaries on the Laws of England, nineteenth-century novelist Wilkie Collins calls into question the idea that simply disseminating textual versions of the law or the records of legal processes will be able to furnish transparent access to the law for the lay reader. One of the difficulties he identifies is that of translating the law from the printed page into action; an exchange between two of the protagonists in Armadale who flip through Blackstone to determine whether any impediments would block their marriage demonstrates some of the challenges inherent in imagining the law in action in the absence of knowledge of the legal institutions that implement it. The other obstacle to transparency that Collins represents concerns the unreliability of the accounts of the proceedings of these same legal institutions. In The Law and the Lady, Collins focuses on the trial report, a form that first took on a literary dimension with the causes celebres of pre-Revolutionary France and acquired a similar cultural place in nineteenth-century England and America, and upon which Collins himself relied in constructing the plots of his novels. Through incorporating a fictional trial report into The Law and the Lady, Collins elucidates some of the ways in which trial narratives themselves partook of a literary construction, emphasizing aspects of coherence and continuity over factual accuracy. In both cases, Collins appears to suggest a model of legal reading that does not simply treat the written law as self-executing or the report of a trial as an entirely accurate account but instead adopts a critical and active stance