Things to Read This Week (10/27)
Improving originalism, and much more
Two from the always-worth-reading Chris Green: What Makes an Opinion Originalist? (which I was pleased to see is highly sympatico with Is Originalism Our Law?) and Euclidean Traditionalism (that’s Euclid v. Ambler Realty), which argues: “Rather than focusing on 1791 or 1868, the Court’s protection of nationwide civil liberties should look, as Justice Kavanaugh suggests in his Bruen concurrence, at the prevalence of rights today. Issues remain of how long a consensus on rights must last to count as privileges of Americans generally, but at a minimum, the consensus must be alive today.”
Administrative Law as a Choice of Business Strategy: Comparing the Industries Who Have Routinely Sued Their Regulators with the Industries Who Rarely Have, by Nicholas Parrillo. It happens to me again and again that I spend a year at the lunchtable discussing with my colleagues a big unknown question about how administrative law or something works, and then one day I discover that Parrillo has written a 100+ page in-depth investigation of the answer. And here it happens again. Which agencies tend to get sued by the regulated entities and why:
I find that industry judicial challenges tend to be few and marginal when two conditions are met. The first condition is that companies in the industry have a thick relationship with the regulator—that is, each company knows the regulator will be making repeat decisions impacting its business into the indefinite future, so each company has a stake in winning the agency’s trust and goodwill. The second condition is that, with regard to the agency action at issue, industry economic interests are aligned with the mission of the regulator. This is especially the case for agency action that has the official purpose of protecting the health and safety of the industry’s own consumers, as opposed to protecting industry workers or victims of externalities of industry conduct.
A History of Vacatur, by Ben Johnson. Another intriguing one from the man who made us all rethink the writ of certiorari. I’m not sure I share the normative bent of this article, but I learned a lot from it.
Of course there is Steve’s Zionism and Title VI, after which I will never think about Hellasism, or medieval well-poisoning accusations, the same way again.
Without Domicile or Allegiance: Gypsies and Birthright Citizenship, by Gerard Magliocca: “This Essay argues that the invocations of gypsies (or Roma) during the debates on the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment drew on Blackstone’s discussion of them in his Commentaries and means that legal immigration status, domicile, and allegiance are not requirements for birth citizenship in the United States.” Another important entry in defense of the (correct) conventional wisdom on birthright citizenship.
I think this is all behind academic paywalls, sorry, but American Political Thought has a symposium on Gienapp’s Against Constitutional Originalism, with pieces by Calvin Terbeek, Michael McConnell, James Stoner, and George Thomas, plus a response by Gienapp. Naturally, I especially recommend McConnell’s “Against Bad Originalism,” which argues 1, that Gienapp’s arguments don’t really discredit originalism, but rather call for it to be done more thoroughly and yet 2, that Gienapp’s arguments are hard to square with Marbury v. Madison.
(Sympatico with Baude & Sachs, Yes the Founders Were Originalists)
The link to a History of Vacatur leads to the admin industry litigation article.
Both these lines made me chuckle: "Euclid’s argument about traffic laws, quoted above, is compelling" and "The policy argument from Euclid above for the importance of accommodating technology is compelling."