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With the mainstream acceptance of originalism, many strands of originalism have emerged. In the past, I have queried how we should embrace and consider all of these schools under the umbrella of originalism, but have worried about stretching that fabric too far.

S.L. Whitesell has a novel way of looking at these competing camps: as different elements of a church.

Here is the abstract:

This paper serves as a soon-after revisionist history of originalism. The interpretive theory by that name has existed in earnest for maybe forty years (even if jurists throughout antiquity have applied similar methods). This recency has not stopped modern legal scholarship from misapprehending it in a way that interferes with properly understanding originalism’s modern variants.

Rather than understanding originalism like an empirical science, “a theory working itself pure,” we should regard its various camps more like divisions within a belief community. Originalism is thus more like a church and less like a laboratory.

Herein, I briefly retell the story of originalism’s emergence and development in order to clarify misconceptions and provide context. The shift from “Old” to New” originalism is a meaningful phenomenon for this historical inquiry. The context from Part I frames a discussion of modern originalism’s variants, where I argue for the rejection of the labels “Old” and “New” as inaccurate and unhelpful. Today’s originalists fall broadly in two camps: High Originalists (chiefly the Original-Public-Meaning folks) and Low Originalists (sometimes called old originalists or intentionalists). While the content of these categories may track some other taxonomies, the labels have more conceptual utility. High Originalists have been the ascendant camp since the emergence of New Originalism, but New Originalism is not coterminous with original-public-meaning originalism. And Old Originalists walk among us, some of them quite young, most of them sophisticated thinkers.

I conclude by suggesting that, far from being hangers-on to a bygone era of originalism, the Low Originalists appear to have the better argument and are poised for a resurgence.

This narrative could be expanded more to present-day debates between people like Randy Barnett and Jack Balkin–what I guess could be called dead originalism v. living originalism. How far adrift from the original text can you go before you are no longer originalist?

Paul Miller, a tech writer at The Verge, conducted a bold experiment–he disconnected himself from the internet for an entire year. No computers, smart phones, or anything. He has more fortitude than I did. Last night, he re-emerged from his net silence. His report is worth reading, but this part stuck out:

As my head uncluttered, my attention span expanded. In my first month or two, 10 pages of The Odyssey was a slog. Now I can read 100 pages in a sitting, or, if the prose is easy and I’m really enthralled, a few hundred.

I learned to appreciate an idea that can’t be summed up in a blog post, but instead needs a novel-length exposition. By pulling away from the echo chamber of internet culture, I found my ideas branching out in new directions. I felt different, and a little eccentric, and I liked it.

Without the retreat of a smartphone, I was forced to come out of my shell in difficult social situations. Without constant distraction, I found I was more aware of others in the moment. I couldn’t have all my interactions on Twitter anymore; I had to find them in real life. My sister, who has dealt with the frustration of trying to talk to me while I’m half listening, half computing for her entire life, loves the way I talk to her now. She says I’m less detached emotionally, more concerned with her well-being — less of a jerk, basically.

Quite fittingly, halfway through reading this article, my attention turned to something else. Though, I eventually did turn back to it, and read it in its entirety (well, almost all of it).

With connectedness, it is much harder to think and cogitate deeply about things that can’t be summarized quickly. I recognize that this is one of the biggest drawbacks of the netgeneration. Though, I’m afraid that Paul will remain an anomaly. Most will continue to be more and more connected.

This part at the end of Paul’s account was quite touching:

My last afternoon in Colorado I sat down with my 5-year-old niece, Keziah, and tried to explain to her what the internet is. She’d never heard of “the internet,” but she’s huge on Skype with the grandparent set. I asked her if she’d wondered why I never Skyped with her this year. She had.

“I thought it was because you didn’t want to,” she said.

With tears in my eyes, I drew her a picture of what the internet is. It was computers and phones and televisions, with little lines connecting them. Those lines are the internet. I showed her my computer, drew a line to it, and erased that line.

“I spent a year without using any internet,” I told her. “But now I’m coming back and I can Skype with you again.”

When I return to the internet, I might not use it well. I might waste time, or get distracted, or click on all the wrong links. I won’t have as much time to read or introspect or write the great American sci-fi novel.

But at least I’ll be connected.

The internet is the way we connect to others. Whether we realize it or not, our culture has evolved, and it is not going back to the way it was.Learning to live with, and indeed flourish with, this mindset will be essential for the next wave of our society.

I can’t find the text of the proposed bill, but Techcrunch reports that Schumer is proposing a bill that would allow the PTO a month to sniff out patent troll suits:

Today, U.S. Sen. Charles Schumer (D-NY) is expected to announce legislation that looks to snuff out patent suits brought by these companies in their early stages, by sending the suits to the U.S. Patent and Trademark Office for vetting before they hit the courts.

This could not only help snuff out bogus suits, but it could also highlight which patents may be bogus as well, creating a framework for preventing their use in subsequent suits.

…

What’s interesting is that the bill proposes a new process by which all patent cases will get vetted by the USPTO — not just the “extortion” (his word) brought by trolls. “This will apple to all patent cases, but if you have a legitimate case it will go forward in a month. It just eliminates all the frivolous suits. We think it’s the best solution.”

There are other solutions being suggested for how to deal with the overrun tech patent lawsuit situation. Another suggestion has been for the losers in the cases to cover legal costs for both parties. The idea is that this would be a deterrent for those looking just for a financial return, but Schumer said he believes this would get quashed by the trial lawyer lobby.

“Even if you have to pick up the court costs, you might still be scared into settling because it could take years before a court makes a determination,” he noted. “We would have it before it goes to court and discovery stage.”

This bill is a variation on another piece of legislation that Schumer pushed through Congress successfully in 2011. That update, called the Schumer-Kyl program, was to the America Invents Act and specifically concerned patents in the financial services industry. So far the USPTO has examined some 20 patent cases as part of that patent review program.

Stay tuned.

This wasn’t in Pocahontas…

Archaeologists excavating a trash pit at the Jamestown colony site in Virginia have found direct evidence of the human cannibalism that had long been known to have occurred among the desperate population. Cut marks on the skull and skeleton of a 14-year-old girl show her flesh and brain were removed, presumably to be eaten by the starving colonists during the harsh winter of 1609.

Lisa McElroy and I wrote a new piece on HuffPost Politics about the interplay between surveillance, social media, and privacy in the wake of the Boston Marathon Bombings. The very same connectedness of society that helped to apprehend the killers also may have frustrated the ensuing manhunt. Here is a sample of National Surveillance State 2.0.

The most powerful surveillance network in Boston helped to apprehend the Boston Marathon bombers. This unblinking and omniscient eye was not operated by the state, however; instead, private security cameras, in conjunction with a citizen army equipped with iPhones and Androids, were able to record the mayhem wrought in Copley Square. These shared recordings, which could be obtained without any concerns for the judicial process or the Fourth Amendment, aided the police in identifying, cornering, and catching the brothers Tsarnaev.

Within seconds of the explosion at the finish line, eyewitnesses used social media to share photographs of the scene, and even videos of the blast. Minutes later, a cyber-militia crowdsourced images. Even so, while the police welcomed the help of these cyber sleuths and the wisdom of the crowds in gathering evidence — facial-recognition technology “came up empty” — they opposed real-time reporting of the manhunt on Twitter.