Mike Rappaport Website

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

What Would Happen if the Dormant Commerce Clause Were Overruled?

With the debate in the Wynn case over the Dormant Commerce Clause, Michael Greve has once again criticized originalists for their views on the matter.  Michael likes the Dormant Commerce Clause.  As a policy matter, so do I.  What’s not to like about a doctrine that prohibits or restricts states from engaging in protectionist and other similar actions?

But I am not so sure how important the doctrine really is as a practical matter.  Unlike other constitutional law doctrines, that of the Dormant Commerce Clause does not restrict Congress.  If Congress wants to authorize states to engage in protectionist legislation, it can do so.  And Congress has, most famously in the case of insurance with the McCarran-Ferguson Act.

Read More

Amending the Seventh Amendment

I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial.  Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.

In my view, it is not clear that a strong civil jury trial right is desirable.  My reasons are similar to those that have been voiced by critics over the years.  The civil jury is expensive in terms of the time taken from jurors and to the litigating parties.  The civil jury is often not sufficiently expert to adjudicate complicated facts.  And the civil jury often does not apply the actual law but instead their own views of justice.  While the civil jury is a check on judges, I am not sure it is worth it.

Read More

Reasonable Regulation of the Right to a Jury Trial

I have been blogging about the original meaning of the Seventh Amendment.  Here I want to discuss another issue concerning its meaning: how much the Amendment allows the legislature to change the rules governing jury trials? One concern about the Seventh Amendment is that it might be thought to freeze in place the precise common law at the time.  If the legal system changes in other ways, then those frozen rules might not have a coherent relation with the rest of the system. I am not sure that I find this complaint that serious.  Assuming that the common law rules were frozen…

Read More

Which “Common Law” Does the Seventh Amendment Protect?

In my last post, I cited to Renee Lettow Lerner’s paper describing how the Seventh Amendment Jury Trial Right had been given a narrow meaning.  Here I want to address one of the issues concerning the original meaning of the Seventh Amendment.  The Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

One of the most important Seventh Amendment issues is the meaning of “common law.”  When the Seventh Amendment was being debated, some people opposed it on the ground that the common law right to a jury trial differed in the states and therefore it was not clear which version of the right should be protected and which version would be protected by the Seventh Amendment.

Read More

The Failure of Originalism to Preserve the Civil Jury Trial

Recently, the Center for the Study of Constitutional Originalism at the University of San Diego hosted the presentation of a paper on the constitution right to a jury trial by Renee Lettow Lerner.  Lerner’s paper is entitled: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial and here is the abstract:

Read More

The Garland Texas Art Exhibit on Muhammad

The attack by radical Muslims on the Garland Texas event organized by Pamela Geller has been the subject of contentious debate.  I thought I would weigh in.

The Garland Texas show included an art exhibit and contest for the best cartoon of Muhammad.  Pamela Geller’s critics appear to have two main charges against her and the show:  That the show was insensitive towards the sentiments of religious Muslims and that the show provoked the attackers.

The charge that the show was insensitive towards religious Muslims is the more serious one.  There is no doubt that one should not say something simply because one has the freedom of speech to do so.  On the other hand, one should also not refrain from saying something simply because it will offend someone.  In these matters, it depends in part on the reasons why one is saying the thing.

Read More

The Differences Between the Political Parties

Bryan Caplan recently linked to one of his older posts arguing that there is not that much substantive difference between the political parties.  Bryan believes there are two big misconceptions about the differences between the parties:

The first big misconception is the parties’ key differences are substantive. They aren’t. Reps don’t want to get rid of the welfare state. Almost all Reps support spending a big chunk of GDP on America’s poor and old. And Dems don’t want anything like socialism. Almost all Dems want America to remain a country where markets are the default and people can get rich if they play their cards right.  So what is the “key difference” between the parties? Rhetoric.

The second big misconception is that the parties’ rhetoric makes sense on its own terms. It doesn’t. If Dems really cared about poor human beings, they would quit worrying about the American old, most of whom aren’t poor.  Similarly, if Reps really cared about “over-burdened” tax-payers, they would try to diminish the burden in the only sustainable way: Big cuts in spending. They would be crusading against the popular programs like Social Security and Medicare that absorb most of our tax dollars.

Bryan does offer some explanations for these phenomena:

I understand, of course, that if either party tried to bring its substance in sync with its rhetoric, it would go down in flames. . . . What’s going on? My best guess is that the rhetoric is the bone each party throws its idealists – “If you vote for us, we’ll pretend to want radical change.”

Let me address each of these points separately.  1. The Substantive Differences: Bryan’s post should be understood as part of long line of similar claims made by radicals of different stripes – the idea that the Democrats and the Republicans are not that different, that they are Tweedledum and Tweedledee.  And this understandable enough.  If you are a radical, by definition you favor significant change.  The differences between two moderate parties will seem small by comparison.

Read More

Police Misconduct: A Special Interest with Special Privileges

The riots in Baltimore only highlight the complicated and distressing issue of the recent killings of blacks by the police.  The issue involves so many different matters and is so complicated that one hesitates to even discuss it in print. But it is an important matter that cannot be ignored.

The different cases of killings illustrate the variety of circumstances involved. While it is hard to know for sure about what happened in these cases, the recent killings in Ferguson, Staten Island, South Carolina and Baltimore all seem quite different.  In Ferguson, it appears that the police officer was justified. In Staten Island, the crime was so minor that the death, whether justified or not, seems all the more tragic. In South Carolina, the killing seems obviously wrongful. And in Baltimore, while the facts are not entirely in yet, it seems clear that the officers behaved wrongfully in failing to provide medical attention (and have now been charged with murder). 

Read More

Lawlessness at the Office for Civil Rights – and How to Address It

One of the areas of alleged lawlessness by the Obama Administration has been the Office for Civil Rights of the Department of Education (OCR).  OCR has been pushing the agenda of a rape culture on college campuses.  OCR has used guidances and “Dear Colleague” letters to effectively impose a series of questionable practices on colleges, such as depriving the accused of fair procedures.

There are numerous problems with this agenda.  Some of them are substantive, such as the muddying of the definition of consent.  Some of them are procedural, such as depriving the accused of procedural rights.  But a third set of problems are legal.  The problem is that the rules that OCR is imposing are questionable as a matter of law and have not been tested in the courts.

This is hardly an accident.  The Office strategically imposes these standards through guidances because it knows that it is much more difficult for the guidances to be challenged in court ahead of time. 

Read More

Justice Scalia’s Worst Opinions

Justice Scalia testifies on Capitol Hill in Washington

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

Read More