American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

more impressive with each exposure to it. Everything has changed and nothing has changed since Democracy in America was published in the 1830’s. Its author grasped with remarkable perception both the mutable and the immutable qualities of man. There could be nothing more salutary for us today than to assimilate his fine sense of what was permanent in a world which, like ours, was undergoing deep convulsions. Committed to the classical economics of Adam Smith, Tocqueville did not share Smith’s illusions about the eternal nature of the market. On the contrary, as Albert Salomon has emphasized, his point of view

Democracy in America: An Appreciation On the Occasion of the Centennial of Tocqueville's Death

The Legacy of Anglo-American Textualism

When interpreting the Constitution, judges and commentators often invoke the “original intent of the framers” in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution’s drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framers’ intent. He first examines the various cultural traditions that influenced legal interpretation at the time of the Constitution’s birth. Turning to the history of the Constitution’s framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to “original intention” and the “intent of the framers,” the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the “intent of the framers” can gain no support from the assertion that such was the framers’ expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.

The Original Understanding of Original Intent

The Fourteenth Amendment: From Political Principle to Judicial Doctrine

Originalism’s Promise

The history of American constitutional interpretation has largely been an originalist one. At the Founding, the Framers and Ratifiers employed originalism when debating, drafting, and authorizing the Constitution. They did so against a background of originalist conventions of legal interpretation. Throughout the nineteenth century and – though subject to greater criticism and exceptions – up to the New Deal, originalism continued to be the dominant method of constitutional interpretation.

A Description of Originalism

In Chapter 1, I described originalism’s current status, and I noted the many areas of current debate among originalists. My description was ecumenical because it did not “take sides” in the debates.

The Constitutional Communication Model of Originalism

/pdf/an-originalist-theory-of-precedent-originalism-4hhgvsp74y.pdf

An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good

One of the most persistent criticisms of originalism - and also one of the most powerful - is that originalism is not a viable interpretative methodology because of the tremendous change that has occurred since the Constitution's original meaning was created. The Constitution's original meaning arose in contexts so dramatically different from our own, the criticism goes, that a Constitution whose meaning is limited by those contexts would be unworkable in today's world. This form of criticism of originalism is pervasive. Members of the Supreme Court, many in the legal academy and, indeed, even scholars sympathetic to originalism, find the challenge of change compelling. Originalism's proponents have not answered the challenge of change. Instead, they have only noted the challenge in passing and infrequently offered terse, often tentative responses. Justice Scalia, the most prominent judicial proponent of originalism, has even conceded the force of the challenge of change. This Article, by contrast, breaks new ground by providing the first systematic argument that originalism can meet the challenge of changed social conditions. This Article has four parts. First, it explains what originalism is. Second, it reviews the challenge of change. Third, it describes the six interpretative tools that enable originalism to surmount the challenge. Lastly, this Article shows that, despite its ability to meet the challenge of changing social circumstances, originalism retains the virtue of sufficient inflexibility to maintain the "critical bite" necessary to be a principled interpretative methodology. One of the tools that originalists have used to ascertain the Constitution's original meaning, but which they have failed to articulate, is what I label abduced-principle originalism. I will describe abduced-principle originalism, explain how its use is pervasive, and why it is central to originalism's ability to meet the challenge of change.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1268389_code170891.pdf?abstractid=1268389&mirid=1

Originalism and the 'Challenge of Change': Abduced-Principle Originalism and Other Mechanisms by Which Originalism Sufficiently Accommodates Changed Social Conditions

Lee J. Strang

Papers

Originalism’s Promise

A Description of Originalism

The Constitutional Communication Model of Originalism

An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good

Originalism and the 'Challenge of Change': Abduced-Principle Originalism and Other Mechanisms by Which Originalism Sufficiently Accommodates Changed Social Conditions