Originalism and Jurisprudential Change

This paper from Stephanie Barclay argues that judicially created exemptions from generally applicable laws were normal at the time of the founding, the implication being that for a judge to grant a religious exemption from such a law would hardly be "a constitutional anomaly." See Employment Div. v. Smith, 494 U.S. 872, 886 (1990). For… Continue reading Originalism and Jurisprudential Change

Grading: What is it Good For?

Because of the coronavirus, Harvard Law School has switched to a mandatory credit/fail grading system for the term. Initially, the administration had allowed for an opt-in credit/fail system, so that people who were less disrupted by the switch to remote learning and other changed circumstances could still try for grades. But students were concerned that… Continue reading Grading: What is it Good For?

Title VII, Textualism, and “Because of Sex”

Title VII of the Civil Rights Act prohibits employment discrimination "because of sex." Today, the Supreme Court will hear argument on whether discrimination because of sexual orientation (or gender identity) falls into this category. Some commentators have identified the affirmative answer to this question as the textualist position. Textualism is the position that the words… Continue reading Title VII, Textualism, and “Because of Sex”

Calla Hales’s Real Point (And Why It’s Still Wrong)

Here is a tweet from Calla Hales, the director of an abortion clinic, criticizing North Carolina's proposed "born alive" bill: https://twitter.com/heyitscalla/status/1116065248681787393 Alexandra DeSanctis of National Review quoted the tweet and added a comment, interpreting the original tweet: https://twitter.com/xan_desanctis/status/1116433070041772036 I think Hales was making a different argument. She was not using the North Carolina law to make… Continue reading Calla Hales’s Real Point (And Why It’s Still Wrong)