Thanks to @cmulligan.bsky.social (Brooklyn Law School) for a terrific final Ideas Lunch of the semester. We loved hearing about “Data Property, Bailments & Descendibility” and ending the term with such a thoughtful conversation.
Worth it for the comments.
Please help me get the word out about the new websites for Legal Theory Blog and the Legal Theory Lexicon. Reposting here and on other social media sites is great. It would be especially helpful if law school faculty members could send an email to their colleagues with the new addresses.
Original article Founding Era Translations of the US Constitution (ssrn.com/abstract=248...) and appendix (ssrn.com/abstract=248...).
Great to see “Founding Era Translations of the US Constitution” cited in the New York Times. We're a better, stronger country when people of different perspectives and backgrounds choose to work together to form a "vollkommenere Vereinigung." www.nytimes.com/2025/03/03/u...
Or, who is a legal academic and just in the Bay Area generally next week…. (Clearly I have a specific ask here.)
Do I know any law&tech folks going to AALS this year who think about algorithm regulation in some form?
Brooklyn Law School is hiring a tenured chair in Entertainment Law, and I’m heading the search! Drop me a line if you’re interested or have any suggestions!
Something completely different: HLS’s Alex Chen & I just posted "Parafamily," forthcoming BU L Rev, abt how the legal sys can move away from assuming all families are nuclear & embrace varied supportive arrangements, incl. nonsexual & polyamorous ones. ssrn.com/abstract=4782332
Tomorrow, our affiliated fellow @cmulligan.bsky.social presents at our Ideas Lunch: "Data Property & Digital Sales". Don't miss it!
Thursday, January 25, 2024 at noon ET
Email mila.samdub@yale.edu for zoom details
Attn law profs: SEALS has created a portal for those scholars who are interested in visiting at other schools (feels a bit like a match program). Such a great idea and service to the law prof community. You can register here: sealslawschools.org/hiring/visit...
Who all is going to AALS?
More from me here: Diverse Originalism, History & Tradition papers.ssrn.com/sol3/papers....
Finally, from the oral arguments, I’d be shocked if (c)(1) weren’t held to be constitutional. No justice seemed to push back on the central claim that judges can disarm people who are individually assessed to be dangerous today.
J. Jackson asks both advocates how we can care abt history & tradition when 2A didn't protect arms rights for Black people and Native Americans. Wish someone had noted that 14A reaches back and erases constitutionality of those bans, & that you have to read 2A in light of 14A.
(2) Clarify you don’t need a dead ringer regulation, but evidence of historic principles for limiting 2A rights; (3) Clarify not to put too much weight on lack of regulation when there’s no evidence that absence of regulation speaks to a judgment about constitutionality.
Hot takes on the Rahimi oral argument: Justice Kagan asks SG Prelogar what would be helpful for SCOTUS to clarify in Rahimi after Bruen, and Prelogar essentially gives my wishlist: (1) Clarify the whole original public meaning matters, not just historic regulations;
Tomorrow, Rahimi creates the opportunity for the Court to clarify that it still cares about the OPM of the 2A and the 14A, which would yield more accurate and just results than what’s followed immediately from Bruen.
Only looking to regs also sends the unfortunate message that the whole public’s understanding – including non-elites, women, PoC – don’t matter, when they do matter for OPM.
And it doesn’t know how to deal with situations where a regulation wasn’t passed because of other legal or cultural factors (like how society understood the domestic sphere), not because of opinions about constitutionality.
Why is only looking to historic regulation bad? It misses situations where there was agreement about constitutionality of passing a statute, but not political will to pass. (And this happens! E.g. Michael McConnell's argument that Brown v. Board is originalist is based on this.)
(There was some discussion at ND about whether Bruen *really* requires the government to find an analogous statute or not, but lower courts have been acting as though it does, so if Bruen didn’t mean that, Rahimi needs to clarify.)
Whereas OPM asks how text was understood by the public in context, Bruen only looks to regulations. This limits the relevant evidence to a subset of that which speaks to the public understanding of 2A (& 14A).
Instead, Bruen asks what the “plain text” of 2A covers, and then says for any limitation to be constitutional, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
Bruen’s majority says the “original public understanding” of 2A is “a critical tool” for interpreting it, but Bruen is not really an “original public meaning” originalism (OPM) opinion.
Just spoke at an insightful symposium about the Supreme Court’s test in NYSRPA v. Bruen, organized by NotreDameLRev & Duke Ctr Firearms Law. With the oral argument in the Rahimi case coming up, I wanted to share some of my thoughts from the conference here.