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).

The Independent Counsel and the Unfairness of Being Targeted by a Federal Prosecutor

Over the past several years, I have given some thought to the old independent counsel statute.  I have argued that the statute both had constitutional and policy defects.  Here I want to elaborate a bit more on one of the alleged defects. One of the problems with the independent counsel (IC) is that this official seemed to be too powerful.  The IC would investigate, would usually find some type of violation, and then could prosecute.  The defendant would then be faced with the risk of a criminal trial and a severe sanction or would be pressured into a plea bargain.  Either…

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Gorsuch Nods

I haven’t been able to catch too much of the Gorsuch hearings, but I have heard some of it.  One of the exchanges, which has drawn some attention, involved Senator Amy Klobuchar asking Judge Gorsuch whether a woman President is consistent with the original public meaning: "So when the Constitution refers like 30-some times to ‘his' or ‘he' when describing the president of the United States, you would see that as, ‘Well, back then, they actually thought a woman could be president even though women couldn't vote?" Klobuchar asked. "Senator, I'm not looking to take us back to quill pens and horses…

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What Was the Common Law Right to an Impartial Jury at the Time of the Constitution?

In my last post, I argued that Justice Thomas’s dissenting originalist opinion in Pena-Rodriguez v. Colorado required that one view the Constitution as written in the language of the law.  Thomas viewed the Sixth Amendment right to an impartial jury as deriving its content from the common law that existed at the time of the Constitution.  I agree with Thomas that the Sixth Amendment does have the legal meaning of the common law right at the time. But was Thomas right about the content of the common law right in 1791?  Is it clear that it did not allow juror statements…

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The Language of the Law and Pena-Rodriguez v. Colorado

Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law.  The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law.  But what turns on this question?  The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices. A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards…

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Sunstein on Regulatory Reform

Few people who served in the Obama Administration or are professors at Harvard Law School praise the Trump Administration for anything, but Cass Sunstein is commending the Trump Executive Orders on regulatory reform.  Sunstein writes: The [new executive] order calls for the official designation of “Regulatory Reform Officers” and “Regulatory Reform Task Forces” within each department and agency of the federal government. The reform officers are charged with carrying out three earlier executive orders. The first is Trump’s own requirement that agencies eliminate two regulations for every one that they issue. More surprisingly, the second and third come from Presidents Bill Clinton…

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Gary Lawson on Proving the Law

I received this book – Evidence of the Law: Proving Legal Claims – in the mail and am looking forward to reading it.  Gary Lawson, of course, is a leading originalist and an expert in administrative law.  I use his first rate Administrative Law casebook. In Evidence of the Law, Gary discusses the fact that our legal system, while focusing carefully on the methods and standards for proving facts, generally ignores the methods and standards for proving law.  Yet, such methods are crucial. And nowhere is this more true than in originalism.  If one thinks about constitutional originalism, it is very much concerned…

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Do Liberals Want Conservative Nonoriginalists?

Over at the Volokh Conspiracy, Randy Barnett, as an aside, asks liberals the following question: Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause? In his U.S. Today Column, Glenn Reynolds picks up on the idea and explores various decisions that might be overturned based on a conservative living constitutionalism. Barnett’s is an…

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Originalism and Judge Neil Gorsuch

At the annual Originalism Works in Progress Conference, I try to discuss, at the beginning of the conference, the most important events concerning originalism in the past year.  Here is an excerpt of my remarks on Supreme Court nominee Judge Neil Gorsuch: Last year, I spoke about the sad passing of Justice Scalia and whether originalism could survive it.  But what a difference a year makes!  Based on his writings, it appears that Judge Neil Gorsuch would be an originalist justice.  Some of the strongest evidence of Gorsuch’s originalism comes from his Case Western Law Review Article on Justice Scalia. That essay…

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Has Originalism Been Tried?

Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego.  It was another very enjoyable and productive event.  University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post: I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was…

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Against National Injunctions

The Trump executive order temporarily barring travelers from 7 countries has once again raised the issue of a single federal district court issuing a nationwide injunction.  This type of injunction was also used against the Obama Administration’s deferred action program (DAPA).  In my view, these type of injunctions are extremely problematic. Samuel Bray, an expert on equity, has written about the serious problems with these injunctions.  In this short piece, he notes three basic problems.  The first is the problem of forum shopping.  The plaintiff simply chooses an hospitable circuit in which to file the case.  The Ninth Circuit for the…

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