Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism—arguably best classified as a version of expected-applications originalism—is “confused, implausible, and unworkable.” I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions.

This article explores the nature and role of legal powers in private law. I show how powers are special in that they allow agents to change their (and others’) legal circumstances merely by communicating an intention to do so, without having also to change the nonnormative facts of the world. This feature of powers is, I argue, particularly salient in private law, with its correlative or bipolar normative structure; understanding powers and their role in private law thus requires careful attention to this correlativity. In the final section, I argue that the correct explanation of a variety of substantive problems in private law, many having to do with the role of a party's intention, turns on correctly understanding legal powers.

The article uses the recent U.S. Supreme Court decision in the same-sex marriagecase Obergefell v. Hodges as the springboard for a generalenquiry into the nature and existence of a constitutional right to liberty underthe American Constitution. The discussion is divided into two main parts. Thefirst examines the meaning and the justifiability of there being a moral rightto liberty as a matter of political philosophy. Two such rights aredistinguished and defended: first, a right not to be coerced by the state whenthe state is motivated by improper reasons (prominent among which arepaternalistic reasons); and second, a right not to be coerced by the state whenthere are insufficient justifying reasons for the state to do so, irrespectiveof how such state coercion may be motivated. Neither right is regarded as“absolute,” and so it is morally permissible for the stateto override such rights in certain circumstances. The second part of the articleexamines the distinct and additional considerations that must be taken intoaccount when these two moral rights to liberty are fashioned into correspondinglegal rights under American constitutional law. Both such rights survive thetransformation, but each becomes altered somewhat in its content. This legaltransformation includes recognition of the nonabsolute nature of moral rights,such recognition taking the form of some doctrine of “compellingstate interests.” The discussion in these two main parts of thearticle is prefaced with a defense of the article's use of politicalphilosophy to inform constitutional law, a defense motivated by Chief JusticeRobert's denunciation of such an approach to constitutional law inhis opinion in Obergefell.

This essay reviews Frederick Schauer's book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer's criticism on that score is sound. His analysis of the role coercion can play in accomplishing law's moral tasks is also welcome and important. Nevertheless, Schauer's jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of Law’s strong critique of contemporary positivism and the incompleteness of its own method make an indirect case for the classical tradition of theorizing that understands law in light of its moral purposes.