I'm attending a very interesting conference this morning organized by my esteemed colleague Gerard Magliocca, and sponsored by the Indiana Law Review, on "What If? Counterfactuals in Constitutional History."
I've long been a fan of counterfactual analysis in law. I've even written a couple of related articles (one of which is available here) based, in part, on a constitutional counterfactual question: What if the Fifth Amendment to the US Constitution did not include the Taking Clause? Put differently, how much of a difference does constitutional/judicial protection of private property from government over-regulation and expropriation really make? By comparing constitutional protection of private property in the US with the system of almost purely political protection of private property in the UK, I concluded that the case for constitutional protection is not very strong.
Today's conference includes several interesting panels, featuring papers by a wonderful group of panelists, including:
Amanda Tyler on "The Counterfactual that Came to Pass: What If the Founders Had Not Constitutionalized the Privilege of the Write of Habeas Corpus"
Ilya Somin, "What If Kelo Had Gone the Other Way?"
Alison LaCroix, "What If Madison Had Really Won? Legislative v. Judicial Supremacy"
Kim Roosevelt, "What If Slaughterhouse Had Been Decided Differently?"
Heidi Kitrosser, "What If Daniel Ellsberg Hadn't Bothered?"
Carlton Larson, "What If Chief Justice Fred Vinson Hadn't Died in 1953?"