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).

Do We Spend Too Much on Preventing Terrorism? The Comparison with Auto Accidents

One argument often made against taking significant actions against terrorism is that the number of people killed or injured by terrorism is, by comparison with other causes, extremely small.  So even 9/11, which resulted in the death of nearly 3000 people, was a mere fraction of the approximately 35,000 people who die every year from car accidents.  The idea seems to be that we should be spending much less money on preventing terrorism, perhaps no more per life saved than we do for each life saved from car accidents.  That we do not do this suggests a severe innumeracy of…

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The Mueller Investigation: Impartiality and Conflicts of Interest

Recently, I wrote about the size and scope of the Mueller Investigation.  Here I discuss the criticisms of the lack of impartiality that have been raised about the investigation. Political Orientation: The first aspect of this issue involves the political orientation of the 15 lawyers that Mueller has hired.  News reports indicate that “at least seven of the 15 lawyers Mueller has brought on to the special counsel team have donated to Democratic political candidates, five of them to Hillary Clinton.”  By contrast, no members have contributed to Republicans (except one member who gave much more to the Democrats).  So the…

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The Mueller Investigation: Its Size and Scope

It is early days for the Mueller investigation, but still there are some interesting developments.  One is the appointments made by Mueller.  The special counsel has hired 15 lawyers, most of whom are on detail from other parts of the Department of Justice.  And the special counsel has plans to hire more lawyers.  My first reaction to this was amazement.  Fifteen lawyers are a small law firm.  What could possibly justify hiring this number, not to mention more people? It is easy to be cynical about this.  Mueller has an incentive to maximize his power and knows that it will be difficult…

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The Travel Ban at the Supreme Court

The Supreme Court’s travel ban case, Trump v. International Refugee Assistance Project, was seen by many as a mixed decision, with part of the preliminary injunction being upheld (for persons who have a sufficient connection with the US) and part being struck down.  President Trump viewed it is a victory, whereas some critics of the ban viewed it as a harbinger of ultimate victory for their side. The main argument of those who view it as a harbinger of ultimate victory is the claim that to uphold the injunction in any respect required the Supreme Court to conclude that the plaintiffs…

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Natural Rights and the Declaration

Today is Independence Day, which brings to mind this great passage from the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new…

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Law and Norms: The Case of Kevin Durant and the NBA

Conservatives and some other stripes of political thinkers have placed great emphasis on the importance of norms in a society.  It is not just the law that matters.  It is the norms that operate in conjunction with the law. The same thing, of course, happens in other areas.  Recently, the Golden State Warriors became NBA champions and by some measures they may have been the best team of all time.  But I regard the team as having been formed in an illegitimate way, through the inappropriate actions of Kevin Durant, even though his actions were perfectly in accord with NBA rules. At…

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Another Wrongful Conviction Case

There has been another exoneration of two wrongly convicted people.  I have blogged about these travesties of justice in the past.  Such wrongful convictions are just so very sad.  Innocent people lose decades of their lives and are treated as horrible wrongdoers by society.  The compensation they receive, when they receive it, is woefully inadequate. This conviction is a familiar one in several ways.  First, the subject of this prosecution – claims of child abuse against child care workers for extreme behavior supported only by wild testimony of a child after significant opportunity for her story to expand – was part…

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Living Constitutionalism on the Supreme Court’s Website

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred. …

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Restricting Entry into the Hospital Market

I have started to blog about how the health care system, even before Obamacare, substantially diverged from a free market system.  This occurred in both obvious ways, such as Medicare and the tax advantage for employer provided health insurance, and in less obvious ways. One of the less obvious ways is the restriction on building hospitals.  A key feature of any free market is that there be no legal barriers to entry.  One of the sure fire signs of a troubled economy, as seen throughout the developing world, is that there are restrictions on entry of businesses into a field.  Some…

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Obstruction of Justice and the Unitary Executive

Obstruction Of Justice

There has been much talk about President Trump’s statement to James Comey that he hoped that Comey could let the issue of prosecuting Michael Flynn go.  Some people see in this statement an order that Comey not prosecute a criminal wrong, while others see merely a hope or request (but not an order) that Comey not prosecute.

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