January 2014

The “third-party problem”: one reason telegrams were not constitutionally protected

Unlike postal mail or, later, the telephone, telegrams never received constitutional protection. Yet they were the quintessential nineteenth-century technology of communication, used extensively for business, government, and personal communication, much of which both senders and receivers would have wished to keep to themselves.

December 2011

The (scientific) development of common-law precedent

One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of stare decisis. But before the seventeenth century, the defining characteristic of English common law was not this one, but rather that common law reflected universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, not as binding in themselves.

October 2011

Liberty or inflexibility: reading Antonin Scalia

Antonin Scalia, Supreme Court justice and originalist extraordinaire, wrote “Common-Law Courts in a Civil Law System” as a part of A Matter of Interpretation: Federal Courts and the Law. In it explains his approach to legal reasoning and especially to Constitutional interpretation, and especially rejects both legislative history and the so-called “living Constitution” of liberal justices like Stephen Breyer.