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7 Nov 2021, 2:46 pm
In a thoughtful recent post, co-blogger Stephen Sachs responds to my own post arguing that a Supreme [read post]
1 Jun 2016, 7:13 am
William Baude, University of Chicago Law School, and Stephen E. [read post]
26 Jan 2024, 9:30 pm
Stephen Sachs has posted the syllabus for his HLS seminar, "Originalism and Its Disconents [read post]
15 Nov 2023, 6:30 am
William Baude, University of Chicago Law School, Jud Campbell, Stanford Law School, and Stephen E. [read post]
5 Jul 2024, 4:30 am
defend this account of our law against an originalist reading of Dobbs advanced by Professor Stephen [read post]
21 Nov 2024, 4:00 am
Last week, Professor Stephen Sachs, the Antonin Scalia Professor of Law at Harvard Law School, gave the [read post]
23 Apr 2021, 9:30 pm
Public Health and Deadly Epidemics: A Conversation with John Fabian Witt on American Contagions (HNN).Stephen [read post]
4 May 2018, 9:30 pm
Congratulations to Honor Sachs, University of Colorado at Boulder, upon her naming as a National Humanities [read post]
5 Nov 2021, 11:30 am
[How are the remedies supposed to work?] (Continued from prior posts.) The more I think about it, the more confused I am by how the various SB8 challenges are supposed to work, even if they succeed. Consider the following outcomes: An injunction granted to the provider plaintiffs, barring a defendant class of state court clerks from accepting SB8 suits. An SB8 plaintiff (call him Joe) goes to a Texas state court to file his lawsuit and demand his $10,000. The clerk obeys the injunction, so she… [read post]
15 May 2024, 1:07 pm
[Why originalist criticisms of Dobbs often misfire, and why criticisms *of* Dobbs's originalism often misfire too.] Was Dobbs an originalist opinion? Did it abandon originalism for "history and tradition"? Or did the Court's history show originalism itself to be fatally flawed? I'd say "yes," "no," and "of course not." To that end, I've got a new paper, forthcoming in the Harvard Journal of Law & Public Policy, defending… [read post]
16 Jan 2024, 6:58 am
[A keynote address to the Symposium on Common Good Constitutionalism.] In October 2022, a symposium was held at Harvard on my colleague Adrian Vermeule's book Common Good Constitutionalism. Though I have many disagreements with the project, I was honored to present the keynote address, "According to Law," which is now among the papers published in the latest issue of the Harvard Journal of Law & Public Policy. Here's the abstract: What we ought to do, according to law,… [read post]
25 Sep 2014, 5:01 am
Stephen E. [read post]
23 Jan 2025, 10:51 am
As promised, my new paper on the Equal Rights Amendment, "The Twelfth Amendment and the ERA," is now available on SSRN. The paper lays out new historical evidence on prior Article V amendments, to show that Congress can and has placed legally operative language in its proposing resolutions, and not just in the proposed article text. The implication is that the ERA's seven-year time limit is valid—and that the article the ERA proposed to add is not. Here's the abstract:… [read post]
16 Apr 2024, 8:41 am
[How a use tax on mifepristone might scramble abortion debates.] Yesterday in my conflict of laws class I taught South Dakota v. Wayfair, the 2018 case which lets states force out-of-state sellers to collect and remit use taxes. This morning I wondered why it hasn't been invoked more in the debates over interstate restrictions on abortion. Wayfair involved a South Dakota requirement that businesses pay sales taxes on the products they sell into the state. If they don't, their customers… [read post]
13 Sep 2023, 5:38 am
[A long history of amending resolutions with legal effect.] When Congress proposed the Equal Rights Amendment in 1972, it specified in its joint resolution (86 Stat. 1523), agreed to by two-thirds of each House, that the ERA would become valid "when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress." Not enough states ratified before the seven years elapsed, or even before the end of a three-year… [read post]
14 Nov 2021, 7:47 pm
[Would the outcome in Dobbs put originalism in doubt?] Josh Blackman quotes a conservative 3L as suggesting that, if the Dobbs case doesn't overrule Roe, he or she might have to give up on originalism. I've heard sentiments like these before, and I have to say, they puzzle the heck out of me. Why would anyone upset by Dobbs conclude, "gosh, I'd better change what I believe the Constitution says about recess appointments and the Confrontation Clause"? What kind of views of… [read post]
9 Dec 2021, 6:16 pm
Smith comments at Ius & Iustitium on my prior post on originalism and positive law, comparing it to Stephen [read post]
9 Nov 2021, 8:40 am
[Two points in response to Ilya Somin.] Two quick points regarding Ilya Somin's kind response on principles and SB8. Ilya argues that courts can't permit a state to block "meaningful federal judicial review of laws that might violate constitutional rights." To that end, courts can depart from general procedural rules—about sovereign immunity, proper parties, and so on—to the point of hearing suits against "the clerk, the janitor, the bailiff, or whatever other… [read post]
24 Mar 2025, 8:12 am
[A response to Joel Alicea on whether originalism needs a moral defense.] Does originalism need a moral defense? In his newly published Vaughan Lecture, Joel Alicea argues that it does: Justifying a constitutional methodology requires arguing that judges ought to employ that methodology, which requires making a moral argument that the methodology is better than its competitors. And we can only know the comparative moral soundness of competing methodologies by reference to some standard of moral… [read post]
22 Jul 2024, 8:38 am
[Let voting parents cast ballots for their children.] Kids don't vote. That means nearly a quarter of American citizens don't have their interests defended at the polls. But parents can vote, and they could vote on behalf of their children. This bipartisan idea, with support ranging from Cornel West to J.D. Vance, would be the most significant expansion of the franchise since the Nineteenth Amendment—and it's something that any state legislature could do on its own,… [read post]
