Things To Read This Week (3/31)
Calvin’s Case and Birthright Citizenship, by Benjamin Keener. (“Calvin’s Case supports the traditional understanding that individuals born in the United States are, absent extraordinary circumstances, citizens.”)
The Concept of the Common Law, by co-blogger and soon-to-be UChicago colleague Sam Bray. You should be asking yourself, does your law school teach the classical understanding of the common law? If not, why not?
Workarounds in American Public Law, by Farber, Grould, and Stephenson. I just got a paper reprint of this in the mail(!) Relevant to some things I have been chewing on.
Professor Baude,
I wonder whether a more classical understanding of common law could help us see the desirability of workarounds in public law. I recall reading a passage from Christopher St.German's (1460, 1540) exposition of equity which suggested that every rule, being of human and thus finite origin, must imply its exception. This statement, offered as commonsense, must seem staggering to the modern mind trained on statues and constitutions.
Of course, English law changed since St. German. Maybe political theory can offer some help here. Thinkers like Carl Schmidt have made their focus to criticize the kind of bureaucratic depersonalization that characterizes the modern state, which in their view unduly neutered the sphere of the political. Maybe the approach found in St.German only made sense because of the centrality of people to legal proceedings, as opposed to text. This might be wading too far into the realm of speculation.
The Keener paper in particular looks great!