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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Email me --My Home Page --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? 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Solum University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110-2492 USA 
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Wednesday, May 19, 2004
Understanding the Compromise of May 19, 2004
Yesterday, President Bush reached a compromise with Senate Democrats on the impasse in the judicial selection process. Bush agreed to refrain from further use of his recess appointments power. The Democrats agreed to confirm 25 named judicial nominees. The compromise broke an impasse triggered by President Bush's use of the recess appointments power to name Charles Pickering and William Pryoer to federal appellate judgeships. Bush's use of the recess appointments power was a response to the Democratic filibuster of Pickering and Pryoer along with Priscilla Owen, Carolyn Kuhl, Janice Rogers Brown, and Miguel A. Estrada. And of course, the filibuster was part of a larger pattern, which I have called "a downward spiral of politicization." Here is an exerpt from the Washington Post story: The White House pledged yesterday that President Bush will not bypass the Senate in appointing federal judges for the next eight months as part of a bipartisan deal to break a seven-week impasse over votes on Bush's judicial nominees. Under the agreement, Bush will not use his constitutional power to give temporary appointments to judicial nominees during congressional recesses for the rest of his current term ending Jan. 20 -- a power he exercised twice in recent months, infuriating Democrats. In return, Democrats, who had been holding up action on all of Bush's judicial choices since March to protest the recess appointments, agreed to allow votes on 25 mostly noncontroversial nominations to district and appeals court posts over the next several weeks. Here are stories from the Los Angeles Times and here is Byron York's piece for National Review Online. What does the "Compromise of May 19, 2004" mean? Is it a victory for Bush? For Democrats? Did Bush's use of the Recess Appointments Clause advance or hinder his judicial appointments agenda? Why was this compromise reached? What If? To understand the compromise, we will need to examine counterfactuals. That is, we need to ask two What If questions. First, what would have happened if this compromise had not been reached? Second, what would have happened if President Bush had never used the Recess Appointments Clause to appoint Pryor and Pickering? Of course, What If questions are tricky. We barely know what actually happened. (My assumption is that there is a real chance that much of the real substance of the Compromise of May 19, 2004 is beneath the surface.) We hardly have a set of well-confirmed laws of social science that enable us to predict reliable the judicial selection process. So there is likely to be a fair amount of uncertainty about our answers to the crucial What If questions. What Would Have Happened If The Compromise Had Not Been Reached? What if the compromise had not been reached? What would have happened then? The first step in answering these questions is to identify the players. This is really a three party game, with (1) the President, (2) the Senate Republican Majority, and (3) the Democratic Republican Minority at the table. What options were open to each of these players: The President The President can nominate or he can make recess appointments. More nominations would have no real effect on the process--all of his nominations are being held up. That leaves the recess appointments move, of which there are three possible variations: Option 1. Make No Recess Appointments Option 2. Make Selective Recess Appointments of Filibustered Nominees Option 3. Make Wholesale Recess Appointments of Senior Status Judges and/or Academics Option 2 assumes that there are filibustered nominees willing to take a recess appointment. In all likelihood, there were none. Based on what we know about the process, it appears that Bush offered recess appointments to all of the six filibustered nominees. Pickering and Pryor accedpted the offer, and the rest declined. So option 2 was out. Option 3 was proposed by Randy Barnett in an NRO op/ed entitled Benching Bork. There is no evidence that the Administration has seriously considered this proposal. Wholesale use of the recess appointments power is a much more attractive option under two conditions: (1) the President is politically strong and hence willing to accept the consequence of activating the Democratic base, and (2) the President is likely to win reelection. If condition two does not hold, then recess appointees are likely to be replaced by a Democratic President. In the current political climate, my guess is that there is uncertainty about the President's reelection and hence Option 3 is less attractive. On the other hand, given that we are in a Presidential election year and the war is already activating the Democratic base, it is possible that wholesale recess appointments wouldn't generate much political capital for the Democrats. The Senate Democratic Minority The Senate Democrats control a veto gate. They can defeat a cloture vote, and hence veto any judicial nominee--unless the rules on cloture for judicial nominees are changed. So the Democrats have three options: Option 1: Veto all nominees. Option 2: Veto selectively. Option 3: Do not veto. Essentially, the Democrats had chosen Option 1 (veto all nominees) as thier response to the President's choice of his Option 2 (recess appoint selectively). The compromise involved a move back to Option 2 (veto selectively) in exchange for the President's move to his Option 1 (make no recess appointments). The Senate Republican Majority The Senate Republican Majority cannot break the Democratic filibuster of judicial nominees without changing the cloture rule (Rule 22). (For an explanation as to why the Republicans can't use the 24/7 option, go here.) Sure the Republicans can force votes, but they can't force the Democrats to confirm nominees. So that leaves the Republicans with only two options: Option 1: Change the Cloture Rule Option 2: Do Not Change the Cloture Rule The Republican's have threatened to use Option 1 (change the cloture rule), but that threat has been ineffective? Why? Because the Democrats know that if the Republicans change the cloture rule, that the Democrats have a wide array of effective countermoves. Most simply, they can simply decline unanimous consent for the day-to-day business of the Senate. Moreover, the Republicans do not have a guarantee of permanent majority status in the Senate. Republicans benefit from the filibuster veto when they are in the minority. Moreover, the filibuster veto enhances the power of individual Senators who are not in the leadership. The House is essentially a Dictatorship of the Leadership; individual members of the House outside the Leadership have dramatically less political power than do individual Senators. Thus, for a variety of reasons, the Senate Republican Majority has opted for Option 2 (do not change the cloture rule). A Rediscription of the Compromise of May 18, 2004 Let's take another look at what happened yesterday. Essentially, the history has three phases: Phase One: The President makes no recess appointments, the Senate Minority selectively vetos, and the Senater Majority allows the veto. Phase Two: The President makes no recess appointments, the Senate Majority vetos all nominees, and the Senatre Minority allows the veto. Phase Three: The same as phase one. Suppose that Phase Two had gone differently, i.e. that the Democrats had not vetoed all nominees. In that case, the President would likely have opted for Option 1 (no recess appointments), because none of the filbustered nominees were willing to accept recess appointments. Hence phase three would still have been identical to Phase 1. Hold that thought! We have one more step to complete. What Would Have Happened If President Bush Had Never Used The Recess Appointments Clause? We still need to ask one more question. What would have happened if President Bush had never exercised Option 2 (selective recess appointments). In that case, we would have remained in Phase 1 (no recess appointments, selective vetos, no change in the cloture rules), which is exactly where we are now. So what net effect did the President's recess appointments of Pickering and Pryor have? There were two effects: Effect 1: Pickering and Pryor got recess appointments. Effect 2: The Democrats vetoed all nominees for a period of a few weeks. In other words, the President's selective use of the recess appointments power had no lasting effect at all, but did have two temporary effects (recess terms for two nominees plus a short delay in the confirmation process). What Does This Mean? So what does this all mean? I'm sure you see this coming. There was no Compromise yesterday. If the Democrats wanted to veto all the President's nominees, they could have done so before Phase 2 (before Pickering and Pryoer got recess appointments). Vetoing all nominees could not force Pickering and Pryor off the bench, and, of course, they will both remain on the bench. Vetoing all nominees did not force the President to forgo use of Option 2 (selective recess appointments), because there were no more judges to get recess appointments. The compromise announced yesterday was simply an announcement by the President and the Democratic Minority that both sides would revert to doing what was in their own perceived long-term interests. If that's so, why did the Democrats temporarily stall the process? There are many possible explanations: (1) They were angry at the recess appointments and were simply acting out; (2) They hoped to provoke the President into a counter-reaction that would actually hurt the President's chance for reelection, (3) They were playing to their base; (4) They didn't think things through, and thought they could actually force the President to make some other concession. And I'm sure you can think of other explanations. How do you know that the Democrats weren't planning to stall all the nominees until after the election (in the hope that Kerry replaces Bush)? I don't know for sure, but all the evidence points against this. If the Democrats wanted to do this, why did they back down? What threat did Bush have? Even if Bush did make use of the recess appointments power between now and 2005, those appointments would expire during Kerry's first term (assuming Kerry was elected). In other words, nothing happened yesterday. Or to be more precise, nothing much happened. We simply moved back to Phase 1--the long-run stable pattern given the curren constellation of political forces. The Long Run What about the long run? What will happen next? In the long run, judicial nominations are pretty simply. There are two scenarios. First, if the same party controls the Presidency and a filibuster proof Senate, that party gets the judges it wants. Second, if one party controls nominations and the other party holds a veto, then (absent logrolling of nominations as party of some other political deal) then the selection of judges will follow a fairly simple pattern. Let's just focus on ideology for the moment. Here is a very simple model: A Simple Model of Political Acceptability Figure One: One Dimensional Model: Political Ideology ________________________________ Left--------------------------------Right According to the simiple model, each judicial candidate's attitudes (or dispositions) occupy a point on a real line from right (right-wing political ideology) to left (left-wing political ideology). Given this simple model, we can model the judges who will be acceptable to the right as a region of the line: Figure Two: One Dimensional Model: Acceptable to the Right _____________________________ Left--------------------------------Right > The red portion of the line represents the candidates who are acceptable to the right. Likewise, we can model the zone of candidates who are acceptable tot he left: Figure Three: One Dimensional Model: Acceptable to the Left _____________________________ Left--------------------------------Right The region marked out by the blue portion of the line represents the candidates acceptable to the left. Combining the two lines, we get a confirmation zone: Figure Four: One Dimensional Model Acceptable to Both Parties _____________________________ Left--------------------------------Right> The yellow portion of the line represents the candidates acceptable to both parties or the confirmability zone. This is not the end of the story. The President is the first mover, and hence we would expect the President to pick judges from the right-most part of the confirmation zone: Figure Five: One Dimensional Model The First Mover Advantage _____________________________ Left--------------------------------Right> The green region of the line represents the candidates that will actually be nominated and confirmed, given the President's first mover advantage. Complications Of course, this is a very simple story. I've assumed that judicial attitudes and dispositions are one dimensional. Of course, in the real world political ideology is multi-dimensional. Moreover, as I've argued elsewhere, judges vary in the extent to which they consider themselves bound by the rules laid down, and hence we could supplement the ideological model with a second dimension that measured judges along a realist-formalist axis. But this is a blog and this post is already long, so I am going with the simplest model that gets my point across. Conclusion: After the Election One more thing. All of this can change after the election. First, the political constellation can change. The Democrats could gain control of the Presidency and/or the Senate. It is even possible that either the Republicans or Democrats could gain control of 60 seats in the Senate, although that seems unlikely. And the stakes can change, because a seat (or multiple seats) on the Supreme Court is much more important than a few seats on the United States Court of Appeal. This might bear on the decision of the Senate Majority (whether Repubican or Democrat) to whether or not to change the cloture rules. But in the meantime, it is business as usual. Nothing happened yesterday, and I expect that this holding pattern will continue until after the election. Wednesday Calendar
At Oxford, Dean Zimmerman (Rutgers University), presents The Ontological Status of Persons: Why it Matters, the 2004 Dasturzada Dr Jal Pavry Memorial Lectures. McGowan on Metaphors David McGowan (Minnesota) has posted The Trespass Trouble and the Metaphor Muddle on SSRN. Here is the abstract:
Tuesday, May 18, 2004
Brown & the 14th Amendment There is more from Volokh on Paul Craig Roberts's unsupportable claim that Brown v. Board was not based on the 14th Amendment. My post on this subject is here. Tuesday Calendar
Summarizing, rule following behaviour includes a cognitive and a volitional aspect. The volitional aspect of the internal point of view, however, is not a pure act of will. It is, so to say, replete with theory that is not contained within the rule if you wish. It is contained in the analytical theory of the legal system saying why rules are preferable to commands, and so why freedom and equality are preferable to arbitrariness, and why therefore it is preferable that the powers in political space are separated, and so on. From that perspective, the analytical theory of the legal system orients the choice of acceptable theories of interpretation, that is, theories to determine the meaning of rules of the legal system result in the legal system making sense as a whole. In short, the analytical theory of the legal system is what makes the legal system a legal order. On the thesis that the legislator, like the judge, is a rule follower, a similar account can be given of his activity. Like the rules of the legal system are not self-interpreting, the rules of the constitution rarely contain a positive indication as to the substance of legal rules issued by the legislator. His rule following behaviour is then confined to not violating the rules he is supposed to follow. Following rules however includes more than the minimalist duty not to violate them. Also at Oxford, Peter Oliver presents Constitutional Theory: Sovereignty and Legal Systems at the Faculty of Law. At Oxford's Ockham Society, Daniel Came (Lady Margaret Hall) presents Nietzsche and the Moral Interpretation of Existence. Volokh on Speech as Conduct Eugene Volokh (UCLA) has posted Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, Situation-Altering Utterances, and the Uncharted Zones on SSRN. Here is the abstract:
This article will discuss several such this speech is really conduct theories. First, it responds to the argument that generally applicable laws, which apply to speech alongside other conduct, should be free from First Amendment scrutiny even when they cover speech because of its persuasive, informative, or offensive content. The article argue that such an argument is unsound, and inconsistent with many leading free speech cases. Restrictions that are content-based as applied should be treated the same way as restrictions that are content-based on their face. Second, the article responds to the argument that various kinds of speech should be punishable because they are part of an illegal course of conduct, speech brigaded with action, or speech act[s] rather than pure speech; such arguments often quote Giboney v. Empire Storage & Ice Co. (1949). The article criticizes Giboney, and concludes that if such an illegal course of conduct doctrine should be recognized, it should be narrow indeed - so narrow that it wouldn't apply to most of the cases where Giboney is cited. Third, the article discusses, and to some extent critiques, Professor Kent Greenawalt's view that certain kinds of statements are situation-altering utterances and thus unprotected conduct. Finally, the article confronts the uncharted zones of free speech - criminal agreements, criminal solicitation, much verbal aiding and abetting, professional speech, and the like - and suggests that these zones are best dealt with by recognizing properly bounded First Amendment exceptions (as the Court has done with regard to libel, incitement, fighting words, and the like), and not by relabeling the speech as conduct. Leiter on the Prospects for Philosophy Graduate Students Brian Leiter puts the scare stories about graduate school as a career optinon into perspective here. Forbath on Charles Black William E. Forbath (University of Texas at Austin - School of Law) has posted Lincoln, the Declaration, and the 'Grisly, Undying Corpse of States' Rights': History, Memory, and Imagination in the Constitution of a Southern Liberal (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
It is a poet's voice, in pieces like The Lawfulness of the Segregation Decisions, that relies for its authority not on historical evidence but on personal and historical memory and imagination. Likewise, this essay (written for a Symposium in Black's memory) suggests, it was as a poet and friend of the New Critics, also southern writers at Yale, that Black found affirmation of - and perhaps inspiration for - his trademark interpretive theory. The New Critics on poetry, like Black on the Constitution, favored the practiced reader's direct conversation with the texts in the canon, attuned to internal structures and relations and to the ways the texts echo and engage one another across generations and centuries. Certainly, many readers of poetry but no other constitutional theorists share Black's confident interpretive precept that we can leave historical "stuff altogether alone" and simply, imaginatively read centuries-old texts like the Declaration or the Constitution and know just what their authors "were saying" and what they had in mind with their "phrasal echoes" and allusions. From the 1980s onward, Black devoted his interpretive energies to three texts, the Declaration of Independence, the Ninth Amendment, and the citizenship and privileges or immunities clauses of the Fourteenth Amendment. The historian may bristle at Black's claims about direct access to what the authors had in mind, but in fact, Black's interpretations of these three texts are uncannily close to the accounts of many of our most perspicacious historians, those most steeped in the "scraps of collateral discourse" Black scorned. The convergence is uncanny because these are not familiar interpretations. They run against more than a century's worth of doctrinal understandings and constitutional common sense. So, the middle part of this essay distills Black's intertwined readings of his three old and "unredeemed" texts and compares them to the historians'. Showing how and why they converge reveals something more general about the interplay of history, memory, and imagination in the field of constitutional law and politics. It was the constitutional right to a decent livelihood that Black aimed, above all, to rest on his new textual foundations. But Black's interpretive energies ran thin at this point. So, the final part of the essay takes inspiration from Black and uses history in his spirit, not as a constraint on the "living Constitution," but to "refresh the reader's memory" and to flush out the "grisly, undying corpse of states' rights" that stalked national efforts to enact a right to livelihood, as it did national efforts to enact racial justice. Constitutional history pursued in Black's fashion, with an eye for historical betrayals and broken constitutional promises and their consequences, offers no binding conclusions shorn of present normative judgments, but such history provides rich support, from a quarter Black would not have expected, for his claim of the "constitutional justice of livelihood." Wilkins on Diversity David B. Wilkins (Harvard University - Harvard Law School) has posted From Separate is Inherently Unequal to Diversity is Good for Business: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar (Harvard Law Review, Vol. 117, No. 5, March 2004) on SSRN. Here is the abstract:
Druey on Owning Information Jean Nicolas Druey (Harvard University - Berkman Center for Internet & Society) has posted Information Cannot Be Owned on SSRN. Here is the abstract:
Nash on Deference to Lower Federal Court Interpretations of State Law Jonathan Remy Nash has posted Resuscitating Deference to Lower Federal Court Judges' Interpretations of State Law (Southern California Law Review, Vol. 77, 2004) on SSRN. Here is the abstract:
Monday, May 17, 2004
Paul Craig Roberts
In an email posted by Volokh, Roberts claims, "Brown was not argued as a 14th amendment case." This is simply false. Read the Brief for Appellants and the Brief for the United States as Amicus Curiae. Then look at this transcript of the oral argument. The notion that Brown was not argued as a 14th amendment case is a complete and utter fabrication, without any support in the briefs or the transcript of the oral arguments. Roberts column also contains this assertion: Americans have forgotten that Brown was based in sociology, not in law. This was widely recognized at the time. “A Sociological Decision: Court Founded Its Segregation Ruling On Hearts and Minds Rather Than Laws,” read a New York Times headline on May 18, 1954. The headline in question is the title of an op/ed by Reston criticizing Brown, not the headline of the New York Times story reporting the decision. That story is available here. The actual New York Times report on the decision includes the following: The Supreme Court adopted two of the major premises advanced by the Negroes in briefs and arguments presented in support of their cases. Their main thesis was that segregation, of itself, was unconstitutional. The Fourteenth Amendment, which was adopted July 28, 1868, was intended to wipe out the last vestige of inequality between the races, the Negro side argued. Paul Craig Roberts should be embarassed and ashamed. Bolling v. Sharpe Check out this post by Will Baude on Bolling v. Sharpe, the companion case to Brown that applied the substance of the Equal Protection Clause to the federal government via the Due Process Clause of the 5th Amendment. Weekend Update On Saturday, I rounded up the SSRN top downloads, and the regular Download of the Week was Does History Defeat Standing Doctrine? by Ann Woolhandler and Caleb Nelson. The Legal Theory Bookworm recommended The New Constitutional Order by Mark Tushnet. On Sunday, the Legal Theory Lexicon entry was on indeterminacy and the Legal Theory Calendar previewed this weeks talks, workshops, and conferences. Also, late on Friday, you will find my Precedent and High Politics, replying to Jack Balkin's recent post, which included the following statement: "[I]f [Solum] accepts the common law tradition as part of what he means by formalist judging, then it's not clear how much he and I disagree, and I'm proud to sign on as a formalist." Monday Calendar
At Oxford's Moral Philosophy Seminar Agnieszka Jaworska (Princeton) presents Caring and Internality. So if you are going to law school and . . . Over at Crescat Sententia, Jeremy Blachman has a very good post for those who will start law school in August or September. Academic Placement by Law School JD Programs Based on the incomplete data gathered here, here are the top ten law schools ranked by placements of JD graduates in entry-level tenure-track positions on law school faculties in the United States for the 2004-05 academicy year. The first list provides the actual number of reported placements (multiply by three to get a rough estimate of total placements). The second list provides a rough estimate of the percentage of graduates placed in tenure-track academic jobs.
1. Yale-19 2. Harvard-17 3. Stanford-10 4. Chicago-6 5. UC Berkeley-5 6. Columbia-4 6. Georgetown-4 6. Michigan-4 6. Penn-4 6. Virginia-4 Rank By Estimated Percentage of Graduates Placed 1. Yale-29.6% 2. Stanford-17.2% 3. Chicago-9.0% 4. Harvard-9.0% 5. UC Berkeley-5.1% 6. Penn-4.5% 7. Virginia-3.2% 8. Columbia-3.0% 9. Michigan-2.9% 10. Georgetown-2.0% Gillette on Rolling Contracts Clayton P. Gillette (New York University Law School) has posted Rolling Contracts as an Agency Problem (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:
Benoliel on Cyberspace & Privacy Daniel Benoliel (University of California, Berkeley - School of Law (Boalt Hall)) has posted Law, Geography and Cyberspace: The Case of On-Line Territorial Privacy on SSRN. Here is the abstract:
Cyberspace, on the other hand, was not left with a public sphere nor has a balanced territorial privacy policy so far been established. Instead, based on the category of database privacy protection, only an ownable-based private privacy legal rule was adopted and too widely so. One of the main explanations for this anomaly, in fact, derives from cyberspace's unique architecture. While the real world is subject to a default rule of a continuous public sphere that is then subject to distinct proprietary private sphere allotments; Cyberspace architecture, on the other hand, imbeds a different structure. In the latter, apart from the Internet's "public roads" or backbone transit infrastructure, which is regulated according to telecommunications and antitrust law, the present default rule contains a mosaic of private allotments - namely, neighboring proprietary web sites. This anomaly is even more acute given that the U.S government, the FTC and theoreticians alike, thus far, have developed neither comprehensive nor supportive boundary theory that could maintain territorial privacy. All three, instead, have implicitly or explicitly only considered technocentristic boundary approaches. From a legal perspective the factual truths or scientific hypothesis underlying the existence of on-line spatiality, as discussed notably in the works of Johnson and Post, Lessig, Hunter, Lemley and others, should, instead, be only a parameter in establishing legal truth. In compliance with what is an alternat ive localist boundary approach, this study suggests that law, indeed, could construct a legal fiction of on-line locales, through which territorial privacy, ultimately, could be integrated into cyberspace privacy policy at large. Moving Day Bookmark the new address for Online Papers in Philosophy. And here is the new ULR for the excellent Freespace. Call for Papers: Theoretical Inquiries in Law
http://www.bepress.com/til/ Publisher: The Cegla Center for Interdisciplinary Research of the Law of the Tel Aviv University Faculty of Law The Journal specializes in the application to legal problems of insights developed in other disciplines, such as moral and political theory, epistemology, social sciences, economics and game theory, probability theory, and cognitive psychology. The range of issues dealt with by the Journal is virtually unlimited, in line with its commitment to cross-disciplinary cultivation of ideas. Contributors to the Journal are distinguished legal scholars working in different "law and ..." areas. The Journal strives to offer a forum for contributions to legal theory by scholars working in disciplines outside of law. The electronic version appears continuously, whereas the paper version is published twice a year, in January and July. The journal publishes articles that are presented at international conferences organized by the Cegla Center in Tel Aviv. ISSN: 1565-3404 Email: cegla@post.tau.ac.il Abstracts available online. Articles available as PDF files. Current Issue: Volume 5 Number 1 2004 Date: 11 May 2004 Sunday, May 16, 2004
Legal Theory Calendar
At the University of Chicago, Special symposium on Violence Against Women as a Crime Against Humanity, sponsored by the Legal Philosophy Workshop jointly with the Center for Comparative Constitutionalism. Speakers will include Catharine MacKinnon and Martha Nussbaum. At Oxford's Moral Philosophy Seminar Agnieszka Jaworska (Princeton) presents Caring and Internality. Tuesday, May 18 At Oxford's Jurisprudence Discussion Group, Luc J. Wintgens presents Legisprudence: A New Theory of Legislation. Also at Oxford, Peter Oliver presents Constitutional Theory: Sovereignty and Legal Systems at the Faculty of Law. At Oxford's Ockham Society, Daniel Came (Lady Margaret Hall) presents Nietzsche and the Moral Interpretation of Existence. Wednesday, May 19 At Oxford's All Souls College, Dr. Piero Pinzauti (Florence) presents Marx's Commodity Fetishism and Wittgenstein's Grammatical Confusion. At Oxford, Dean Zimmerman (Rutgers University), presents The Ontological Status of Persons: Why it Matters, the 2004 Dasturzada Dr Jal Pavry Memorial Lectures. Thursday, May 20 At Florida State, Tahirih Lee, FSU College of Law, presents The Globalization of Law in Asia. At the Oxford Society for Law and Religion, Seminars on Law and Religion, P. Edge presents Official Representation of Religion in National Assemblies or ‘Is half a loaf better than no bread? Also at Oxford, Public International Law Discussion Group, Stefan Talmon presents Interdicting Weapons of Mass Destruction at Sea. Legal Theory Lexicon: Indeterminacy
It all depends on your first year section, but many law students begin to get a sinking feeling about the law early in their first year. Does the law actually make any difference to the way cases are decided? Before law school, most of us would answer "Yes, of course." And many law students start law school with the assumption that they will "learn the rules." But in contemporary American legal education, many students encounter a thesis that goes something like this: The laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please. This counterintuitive position is a version of the claim that law is indeterminate, or what we might call the indeterminacy thesis. The Indeterminacy Debate The indeterminacy thesis is associated with legal realism, but in its most strident form, it is most strongly identified with the Critical Legal Studies movement--a loose and multifaceted cluster of legal scholars that became very prominent in the 1980s. The indeterminacy debate is about the claim that the law does not constrain judicial decisions. Put differently, the claim is that all cases are hard cases and that there are no easy cases. The strongest version of the claim is the notion that any result in any legal dispute can be justified as the legally correct outcome, but the thesis can be modified or weakened in various ways. What does the indeterminacy thesis mean? Let's call the claim that the laws (broadly defined to include cases, regulations, statutes, constitutional provisions, and other legal materials) do not determine legal outcomes the indeterminacy thesis. Because there are many different versions of the indeterminacy thesis, our approach will be to identify clearly the distinct versions of the indeterminacy thesis and then to consider each version of the thesis on its own merits. Indeterminacy versus Underdeterminacy The next step in clarifying the indeterminacy debate is to distinguish between "indeterminacy" and "underdeterminacy" of law. Thus far, we have accepted the implicit assumption that indeterminacy and determinacy are exhaustive categories, i.e. that the decision of a case is either determined by the law or it is indeterminate. This assumption is not correct. A legal dispute may be constrained by the law, but not determined by it. Roughly, an case is underdetermined by the law if the outcome (including the formal mandate and the content of the opinion) can vary within limits that are defined by the legal materials. This approximation can be made more precise by considering the relationship between two sets of outcomes of a given case. The first set consists of all possible results — all the imaginable variations in the mandate (affirmance, reversal, remand, etc.) and in the reasoning of the opinion. The second set consists of the outcomes that can be squared with the law — the set or legally acceptable outcomes. The distinctions between indeterminacy, underdeterminacy and determinacy of the law with respect to a given case may be marked with the following definitions: Hard Cases The notion of a "hard case" can now be explicated with reference to the idea of underdeterminacy. A case is a "hard case" if the outcome is underdetermined by the law in a manner such that the judge must choose among legally acceptable outcomes in a way that changes who will be perceived as the "winner" and who the "loser." The point is that the outcomes of an case need not be completely indeterminate in order for it to be a hard case; a case in which the results are underdetermined by the law will be "hard" if the legally acceptable variation makes the difference between loss or victory for the litigants. The distinction between indeterminacy and underdeterminacy is rarely observed in the indeterminacy debate, but it is nonetheless important to assessing the debate. Claims that the law is radically indeterminate are implausible, but more modest claims about underdeterminacy may both be defensible and play a role in a radical critique of liberal legal theory. Is the law radically indeterminate? The strongest (the most ambitious) claim about the indeterminacy of law is the claim that in every possible case, any possible outcome is legally correct. In other words, the strong indeterminacy thesis is the claim that the law is radically indeterminate: The Strong Indeterminacy Thesis: In any set of facts about actions and events that could be processed as a legal case, any possible outcome — consisting of a decision, order, and opinion — will be legally correct. To falsify the strong indeterminacy thesis one needs to establish that there is at least one possible case in which at least one possible outcome is legally incorrect. This refutation would disprove the strong indeterminacy thesis only in the sense stipulated here; it would not establish that the law is always, usually, or even frequently determinate. The Argument from Easy Cases One way to establish that there is at least one possible case in which at least one outcome is legally incorrect has been called "the argument from easy cases" by Fred Schauer. In its simplest form, the argument from easy cases points to a hypothetical case in which at least one outcome is legally incorrect. The following discussion attempts to formulate one such easy case: Consider the following case, consisting of facts, a legal rule, and a legal event. First, postulate the following set of events and actions: Ben visited Point Magu State Beach in Ventura County, California between the hours of 12:30 p.m. and 4:00 p.m. on Sunday, February 14, 2004. Second, consider the following legal rule: Section 2 of the Sherman Antitrust Act states, "Every person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . ." (26 Stat. 209 (1890)). Third, consider the following claim about a possible case: Ben's visit to the beach on the date and time specified would not constitute a violation of Section 2 of the Sherman Act. In order fully to convince you of this, I would need to tell you more about what went on at the beach on that day. The details will include Ben's looking at the ocean, speaking with friends about politics, reading a book, and so forth. Children flew kites; a friend grilled chicken and hot dogs. You might want to know whether Ben discussed any business dealings at the beach: he did not. But no matter how many questions you asked, no matter how hard you tried, you would not be able to make out a legally valid case that the Sherman Act was violated. If a prosecution were filed against Ben based only on the events specified, a verdict of guilty would be legally incorrect. This is not to deny that it is possible that things would go wrong in some way. Perjury might be committed; the judge assigned to the case might be deranged. Our system of justice is hardly foolproof, but that does not entail the further conclusion that any result is legally correct. The upshot of this example of an easy case is this: there is at least one possible case in which at least one possible outcome is legally incorrect. Therefore, the strong indeterminacy thesis (as I have defined it) is false. Notice my argument is not that the outcome of an antitrust prosecution based on the facts I outline is predictable. Rather, my claim is that one possible outcome, i.e. conviction, would be legally incorrect. If the law is correctly applied and the witnesses testify truthfully, the prosecution should fail. Changing the Hypothetical Of course, we can easily change the hypothetical so that the legally correct outcome would change. Just add a conspiratorial conversation at the beach that does violate the Sherman Act. But the fact that the hypothetical can be changed so as to change the legally correct outcome is not responsive to the argument from easy cases. Let us stipulate for the sake of argument that it is always be possible to add facts to an easy case such that the addition of the new facts will change the legally correct outcome of the case. This does not demonstrate that there are no easy cases. Quite the contrary, the fact that the advocate of the strong indeterminacy thesis needed to add facts to the easy case in order to change the legally correct outcome shows that as originally stated the easy case was not indeterminate. If the strong indeterminacy thesis were true, then a reasonable legal argument should be available on the facts as originally stated in the hypothetical. The additional facts should not be necessary. That facts must be added to transform an easy case into a hard one demonstrates that the law does constrain the set of legally correct outcomes. Is a modest version of the indeterminacy thesis defensible? If the strong indeterminacy thesis cannot be supported, is there a more modest claim about indeterminacy that is defensible and has critical bite? One modest version of the indeterminacy thesis might be the following: in most (or almost all) of the cases that are actually litigated, the outcome is underdetermined by the law. This claim about indeterminacy is not refuted by the argument from hypothetical easy cases. Confirmation of the actually-litigated underdeterminacy thesis would require empirical investigation, but there are some good reasons to believe that cases which actually proceed to filing, trial, or appeal will frequently be underdetermined by the law. Litigants will rarely have an incentive to settle easy cases. For example, in a civil dispute where the law gives a determinate answer to the question of who will win and what the amount of their judgment will be, the parties to litigation will usually prefer to settle, rather than incur the expenses of litigation. Uncertainty about the law is one of the factors that selects which cases will be filed, go to trial, and be appealed. This point should not be exaggerated, however: litigation may proceed for any number of reasons, including an irrational overconfidence in a hopeless case, uncertainty about facts in a case in which the law is clear, and so forth. Important Cases Another modest version of the indeterminacy thesis claims that while many ordinary cases are roughly determinate, all the really important cases are indeterminate. Put more precisely, the claim might be that the important issues in important cases are underdetermined by the law. If true, this claim might preserve almost all of the critical force of the strong indeterminacy thesis. Yes, there are easy cases, but those cases are unimportant. One difficulty with the important case version of the indeterminacy thesis is its potential circularity. Our concept of what counts as an important case may have indeterminacy as a component. Part of what makes a case important is that the result is not certain or predictable; if we all knew how the case would come out, we would not be interested. Likewise, the Supreme Court may select cases in part on the basis of their legal indeterminacy. Conclusion I have just begun to scratch the surface of the indeterminacy debate, but I hope that I've provided enough perspective so that you can begin to think about this important question on your own. As I'm sure you know by now, I am not a fan of the radical indeterminacy thesis, but I also think it is important to recognize that the law is underdeterminate in important ways. For more on the indeterminacy debate, see Lawrence On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987). (online here) For a complete collection of the Legal Theory Lexicon posts with a table of contents, click here. Saturday, May 15, 2004
Taxing Punitive Damages Over at That's News to Me, check out Punitive Damages in the Extended Sphere. Here's a taste:
Bertram on the Best in Recent Political Philosophy Anyone who reads LTB will want to look at Chris Bertram's post on Crooked Timber Best political philosophy/theory papers Here is his list:
G.A. Cohen, “Where the Action Is” , Philosophy and Public Affairs (1997). Michael Ridge, “Hobbesian Public Reason”, Ethics (1998). Elizabeth Anderson, “What is the point of equality?” Ethics (1999). David Schmidtz, “How to Deserve”, Political Theory (2002). Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The New Constitutional Order (linked fixed) by Mark Tushnet (Amazon here):
Tushnet argues that the constitutional arrangements that prevailed in the United States from the 1930s to the 1990s have ended. We are now in a new constitutional order--one characterized by divided government, ideologically organized parties, and subdued constitutional ambition. Contrary to arguments that describe a threatened return to a pre-New Deal constitutional order, however, this book presents evidence that our current regime's animating principle is not the old belief that government cannot solve any problems but rather that government cannot solve any more problems. Tushnet examines the institutional arrangements that support the new constitutional order as well as Supreme Court decisions that reflect it. He also considers recent developments in constitutional scholarship, focusing on the idea of minimalism as appropriate to a regime with chastened ambitions. Tushnet discusses what we know so far about the impact of globalization on domestic constitutional law, particularly in the areas of international human rights and federalism. He concludes with predictions about the type of regulation we can expect from the new order. This is a major new analysis of the constitutional arrangements in the United States. Though it will not be received without controversy, it offers real explanatory and predictive power and provides important insights to both legal theorists and political scientists. Download of the Week This week, the Download of the Week is Does History Defeat Standing Doctrine? by Ann Woolhandler and Caleb Nelson. Here is the abstract:
This article disagrees. In the nineteenth century, courts enforced an active law of standing (although not so called) that cut across various causes of action, and that reflected the distinction between public and private rights. Courts regularly designated some areas of litigation as being under public control and others as being under private control. What is more, and contrary to the standing critics, the Supreme Court often did discuss these issues in constitutional terms, particularly in actions against federal and state governmental officials. We do not claim that history compels acceptance of the modern Supreme Court’s vision of standing, or that the constitutional nature of standing doctrine was crystal clear from the moment of the founding on. The subsistence of qui tam actions alone might be enough to refute any such suggestion. We do, however, argue that history does not defeat standing doctrine; the notion of standing is not an innovation, and its constitutionalization does not contradict a settled historical consensus about the Constitution's meaning. SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
Friday, May 14, 2004
Minor Updates to Entry Level Hiring Post I've made a few minor changes, adding just a bit more data to the report on Entry Level Hiring. Precedent and High Politics
Introduction What is the relationship between the doctrine of precedent and theories that maintain that changes in constitutional meaning are (and should be) the result of political struggles over ideologies and values? In 2001, Jack Balkin and Sandy Levinson published an important article titled Understanding the Constitutonal Revolution, 87 Va. L. Rev. 1045 (2001) (online version here), in which they wrote: It is perfectly normal for Presidents to entrench members of their party in the judiciary as a means of shaping constitutional interpretation. That is the way most constitutional change occurs. But not all constitutional change through partisan entrenchment is legimate: We should make a distinction between two kinds of politics--"high politics," which involves struggles over competing values and ideologies, and "low politics," which involves struggles over which group or party will hold power. In [Board of Trustees of the University of Alabama v.] Garrett the five conservatives seem to be clearly *1063 engaged in "high politics"--the promotion of certain core political principles in constitutional doctrine. By contrast, Bush v. Gore seems to involve "low politics"--with the five conservatives adopting whatever arguments were necessary to ensure the election of the Republican candidate, George W. Bush. And this distinction is important: The distinction between high and low politics is important because it suggests two different sorts of criticisms that one might make about the Court's behavior during a period of constitutional revolution. As we shall argue in more detail later on, constitutional revolutions always concern "high politics"--the promotion of larger political principles and ideological goals. This was true during the New Deal and it is true today. . . . But the objection to Bush v. Gore is quite different. The result in Bush v. Gore is not easily explained as the promotion of principles of "high politics." One very interesting question about Balkin and Levinson's theory concerns the relationship between high political campaigns for constitutional change and the doctrine of precedent (or stare decisis). So I was especially delighted to see Jack Balkin's recent post Formalism and High Politics (prompted by a recent post by Matthew Yglesias and my not-so-recent Getting to Formalism.) High Political Respect for Precedent Balkin writes: I've never thought that respect for precedent is at all inconsistent with my (and Sandy Levinson's) view that constitutional judging reflects differences of constitutional vision that get worked out in constitutional doctrine-- what we have called "high politics"-- and that constitutional change often occurs through doctrinal developments that further those constitutional visions. The reason is simple: There's usually more than one way to argue from existing precedents in most important and controversial cases in constitutional law. "More than one," by the way, doesn't mean an infinite number. It means, simply, more than one. There are many arguments that are completely off the wall given existing precedents, and the existing configuration of legal doctrine, but the fact that many answers are off the wall doesn't mean that only one answer is not. (Nor do I assume that Larry would ever suggest such a thing). Rather, existing precedents usually underdetermine the results of the sorts of cases that tend to come before the Supreme Court. On this I assume both Larry and I are in full agreement. Before we go any further, let me say that with respect to the underlined point, Balkin and I are in full agreement. In fact, my very first law review article [On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987)] made exactly that point and introduced the term "underdetermination" to describe the phenomenon. What is "Respect for Precedent"? Step One: Distinguishing Force and Content But what does Balkin mean by "respect for precedent"? No surprise, that turns out to be quite a question! There are two different dimensions to the question what does respect for precedent mean. We might call the first dimensions force and the second dimensions content. By referring to the force of precedent, I mean to refer to ability of a precedent (whatever its content) to constrain. By referring to the content of precedent, I mean to refer to the rule that a precedent provides. These dimensions are related but conceptually independent. We could have a narrow view of content combined with a strong view of force or vice versa. Step Two: The Force of Precedent If we want to know what "respect for precedent" means, we need to know something about different ways in which we might view the "force of precedent." That is, suppose we know what the content of a binding prior decisions is. We know what would count as a decision that is consistent with the decision, and we know what would count as inconsistent. That leaves a further question: "Is the content of the precedent irrelevant, merely persuasive, binding, or something else. We could slice and dice the categories in various ways, but here is one way to categorize the options: So I am particularly interested in the question, what force does Balkin believe that precedents have? It seems to me that if Balkin is to sign up as a formalist, he must opt for some kind of force that is at least as strong as "gravitational force," but Balkin is very very smart, and he may suggest a new and illuminating way of looking at the question of force. I should be clear. My own view of force is quite strong. I believe in a strong doctrine of stare decisis, and hence in some version of the view that precedent has binding force. This is not the place to discuss my theory of mistake, but for the record, I do have such a theory. Step Three: Content Once we have settled the force question, we can move on to content. Let me first quote Balkin and then add some ideas of my own. Balkin writes: [A]s Karl Llewellyn pointed out many years ago, lawyers have a wide variety of techniques for reading precedents broadly and narrowly, drawing analogies from existing precedents, and formulating new principles from older precedents. All of these techniques are generally called "following precedent." But they sometimes lead to very different results. Indeed, much of constitutional adjudication involves dueling examples of Llewellyn's catalogue of precedental techniques, so that it is very often the case that both sides of a dispute can plausibly claim that they are following precedent, (while insisting that the other side is not, because they are using those techniques quite differently and with a different result). Now it is not clear to me whether Larry wants to contend that some subset of Llewellyn's catalogue of common law practices of precedental argument is illegitimate for formalist judges. If he does not, and if he accepts the common law tradition as part of what he means by formalist judging, then it's not clear how much he and I disagree, and I'm proud to sign on as a formalist at least to that extent. However, if he thinks that substantial parts of this catalogue of precedental techniques are illegitimate, then he has a lot of explaining to do in showing how his theory of judging fits the actual practices of judges over the last several centuries. Put another way, my claim is that the actual practices of what lawyers call "following precedent" are quite flexible. The politicization of the judiciary that Larry decries has not occurred outside of those practices. To the contrary, it has occurred largely within them. And the reason why the work of precedental argument is so flexible is that over the years it has served a variety of different functions. One of those functions is allowing strong conflicts of political principle to be mediated by and worked out through professional discourses of law. Well, it all depends on what you mean by "quite flexible," doesn't it? I am inclined to agree with Balkin that Llewellyn is an imporant source of insight on this question, and I assume that Balkin means to endorse what might be called Llewellyn's mature position (although a good case can be made that it was his true position all along). Here is the way that Zipporah Batshaw Wiseman described the mature Llewellynian theory of precedent in her Llewellyn Revisted, 70 Tex. L. Rev. 771, 773-74 (1992): On the case law side, [Karl Llewellyn] tried to persuade lawyers and judges respectively to understand and to craft the law so that the "fixed core" of any precedent could be reasonably clearly discerned. On the other hand, broader dicta connecting underlying principles with a concrete factual situation might give guidelines for future development down the open- ended lane of precedent. Llewellyn was distressed that, as he saw it, a crisis of confidence in the law had developed. Indeed, it is likely that he had something of a guilty conscience about it, since the notion that anything goes in law had perhaps been given some impetus by realism. His last book aimed to put the record straight, to restore confidence by showing that his message was misunderstood. Rule skepticism was never a doubt about the possibility or desirability of rules, only a campaign against the wrong approach to reading the materials for the rules they expressed and against a wooden style of setting or applying precedents from the bench. If I might be permitted to translate Llewellyn's crucial point into the language of virtue jurisprudence, Llewellyn is making a plea for practical judgment (which he called "situation sense"). In order to apply a rule, you need what I have called "legal vision," the ability to what rules are salient in particular fact situations and to see the point of the rule. Following precedent is not a matter of deaf adherence to wooden formulations or mechanical application of the rule implied by the sentence that begins, "We hold that . . ." Following precedent requires an understanding of the factual and legal context of the prior decision and an ability to discern its relevance to the current controversy. Truly following precedent requires that the judge be a phronimos and nominos. Phronesis is the virtue of practical wisdom, the quality of character and intellect that is in part captured by Llewellyn's idea of situation sense. A judge with the virtue of justice is a nominos, disposed to respect and follow the law and social norms of her culture (see my The Aretaic Turn in Constitutional Theory for a fuller statement). I want to identify one more point upon which I suspect that Balkin and I agree. By respect for precedent, I do not mean respect for legislative pronouncements introduced by the phrase "We hold that . . ." That is, I hold a narrow view of content combined with a strong view of force. Step Four: Questions for Balkin With this groundwork laid, I can now ask Balkin my queston: "What is your view of the force and content of precedent?" In particular, what happens when a high political program of constitutional change runs into a substantial body of opposing precedent? Can the precedent be swept away in a constitutional revolution motivated by ideology and value? Or should constitutional revolution be escewed in favor of constitutional evolution, a gradual process of change that works within (rather than around) the precedent? Do you agree with Llewellyn that "the 'fixed core' of any precedent [can] be reasonably clearly discerned" or do you think that flexibility implies that there is no 'fixed core'? When Precedent Runs Out I am very happy to welcome Jack Balkin to the formalist camp, but if there is a "big formalist tent," then I suspect that we belong in different corners. In particular, I wonder how far Balkin's formalism extends beyond his respect for precedent. For example, how does Balkin view the relationship between high political constitutional change and the constitutional text? And what role, if any, does he think that originalism (particularly original-meaning originalism) play in interpreting the constitutional text? Does Balkin accept that there is a "fixed core" of meaning for the written constitution? Or does he believe in a "flexible core" that bends with the high political winds? Conclusion It's always a pleasure to read one of Jack Balkin's posts on constitutional theory! And if you haven't done so already, I urge you to download Balkin and Levinson's article. P.S. For a prior exchange with Balkin on formalism and high politics, see Fear and Loathing in New Haven and A Neoformalist Manifesto. Modeling Judicial Attitudes
In post entitled Feasible Choices and a follow up titled Improving the Model, Matthew Yglesias raises questions about the model of judicial dispositions that I advanced in Majoritarianism, Formalism, and the Feasible Choice Set. That post presented a much shortened version of the position in an earlier post Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy and further developed in a working paper entitled Judicial Selection: Ideology versus Character. Yglesias writes: [Solum models judicial dispositions] on a two-dimensional scale with one axis representing their left-right political views and another axis representing their formalist-realist jurisprudential inclinations. A moment's reflection will reveal that this is a simplification -- famously, there's more to politics than simply left vs. right, and this is especially the case in the judiciary. Similarly, there is no "formalist" camp in the world of judging, but rather a variety of purportedly formalist schools of thought, of each which believes itself to [be] The One True Formalism. Yglesias's description of the model, although incomplete, is essentially correct. Here is the visual representation of the model (to which Yglesias objects) _____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right The origin of the horizontal political ideology line represents the extreme left; the terminus represents the extreme right. The origin of the vertical judicial philosophy line represents prefect realism--the disposition to decide cases entirely on the basis of political ideology; the terminus represents prefect legal formalism--the disposition to decide cases entirely on the basis of the legal sources, with no influence from political ideology. Actual judges, of course, will rarely even approach the most extreme positions, much less occupty the origin or the terminus on either line. In Defense of the Two Dimensional Model Although I shall decline Yglesias’s invitation to discontinue use of the two dimensional model, I want to thank him for his thoughtful critique. Yglesias reaises two interesting questions: Can political ideology be modeled as a point on a left to right real line? The answer to this question is "yes" and "no." From the point of view of political philosophy, the one dimensional model of judicial attitude is ludicrously oversimplified--a point that I've made in several prior presentations of the model but omitted in the post to which Yglesias responded. In fact, I was quite worried about this point myself, until I began to interact with sophisticated political scientists and to read the relevant literature. As a matter of fact, political scientists find that the one dimensional model works in studying similar issues. In other words, a one-dimensional model predicts and explains behavior almost as well as a more sophisticated multi-dimensional model. It is an interesting question as to why the model works so well, but for my purposes, the fact that it does work seems sufficient. There is another reason why the one-dimensional model of political ideology serves my purposes well enough. A multidimensional model, although it makes representation vastly more difficult, does not actually change the nature of the problem in a fundamental way. One way to see this is to observe that each dimension in a multidimensional model of judicial philosophy can be used be extracted and plotted against judicial philosophy. For each component dimension of the multi-dimensional political ideology the problem of describing the confirmation zone is essentially the same as for the aggregated one-dimensional model. When the components are aggregated within individual actors and then among actors in the complex group decision-making process, the result approximates the one-dimensional model. More intuitively, the one-dimensional model does, more or less, provide a good approximation of the actual pattern of conflict over judicial confirmation. This is reflected in the very close approximation between party affiliation and voting in the judicial selection process. Can judicial philosophy be modeled as a point on a real line? Once again, I agree with Yglesias that the model simplifies—as I’ve repeatedly pointed out repeatedly in prior work on this topic. There are, of course, different versions of legal formalism. If I might be permitted to extend Yglesias’s argument, this could be crucial if some versions of legal formalism falsify one of the basic assumptions of the model—that formalist legal decisions have a mean value near the center of the political ideology line. If, for example, legal formalism actually produces outcomes that produce outcomes with a mean that plots at either extreme of the ideology line, then the judicial selection process could only produce formalist judges when the formalist party controls both the Presidency and a supermajority of the Senate sufficient to overcome the filibuster veto gate. So this leads to an interesting question: does formalism tilt? In my recent exchange with Bainbridge, I addressed this issue (see Formalist Constitutionalism or Quasi-Parliamentarianism? with comments by Yglesias in his post Improving the Model). But I clearly need to say more about this topic. If I might be permitted to write a promissory note, I believe that it can be shown that: (1) any formalism that respects the the rule-of-law values that provide the normative grounding for principled formalism will approximate political neutrality over the long run; (2) short-run deviations from political neutrality should be viewed in the context of the very large benefits of the rule of law and the very large costs of a downward spiral of politicization that undermines the rule of law. An Example: The Barnett Nomination Yglesias uses the potential nomination of Volokh Conspirator Randy Barnett to the United States Supreme Court as an illustration of his points: [W]ould someone with Randy Barnett's [libertarian] views be highly confirmable? There's a sense in which he's politically moderate -- he adheres to some, but not all, of the agenda of both of America's two major political coalitions. He maintains that his views on the constitution are the height of formalistic goodness. And yet, it's hard to imagine a set of views that would make a person less confirmable for a spot on the Supreme Court. He believes that judges should feel free to overrule long-established precedents in order to restore the "Lost Constitution" of original meaning. The policy outcomes that would result from his understanding of the constitution's original meaning would render him unacceptable to both major political coalitions. I’ve underlined the key passage, about which I should like to make three points: First, Yglesias has not accurately represented Barnett’s views with respect to the role of precedent in constitutional adjudication. Barnett has been stated on a variety of occasions that he has not yet formulated a position on stare decisis. Second, I have argued in depth that legal formalism requires a strong doctrine of stare decisis, even at the level of the Supreme Court. (On this, see The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument, Part II: Stare Decisis and the Ratchet, and Part III: Precedent and Principle as well as Getting to Formalism) So, while I agree with Yglesias that there are competing versions of formalism in the broad sense, I do not believe that I need to accept that all formalisms are created equal for the purposes of modeling the judicial selection process. If I have suggested that the model holds for all possible forms of formalism, let me know clarify: that is not my view. Third, but there is, nonetheless, something important about Yglesias’s intuition. My view of legal formalism is embedded in my general legal theory, virtue jurisprudence. From the point of view of that theory, the ultimate normative grounding of legal formalism is aretaic (arête is the Greek for virtue or excellence). A judge with the virtue of justice must be both a phronimos (practically wise) and a nominos disposed to act in accord with the nomoi, which include both the written laws and the fundamental social norms of the community. I take it that Yglesias believes that one might be a legal formalist but reject the fundamental social norms of the community in which the written laws are embedded. Such a judge could produce radical decisions that would upset rather than reinforce the rule of law. We can quibble about labels, but that is not the form of legal formalism that I mean to be discussing. The Yglesias Multidimensional Model Finally, I would like to consider Yglesias’s final point: A more accurate model would not support the conclusion Solum wants. The Solum model requires that formalism be (a) unitary and (b) without any political valence. Both are false. Formalist doctrine comes in several varieties each of which supports a distinct set of policy outcomes. The true shape of the feasible choice set is unlikely to bear a great resemblance to Solum's. I am very interested in alternative models of the judicial disposition space and the confirmation zone, and I would very much welcome Yglesias’s development of a richer and more robust model. If I might be permitted a point of disagreement, I should like to suggest that it easy to make an assertion about the “true shape of the feasible choice set” but a bit more difficult to actually produce a model that backs up this assertion. In my recent exchange with Bainbridge, I suggested that legal theory out to eschew reliance on intuitions about feasibility (See Majoritarianism, Formalism, and the Feasible Choice Set.) in favor of rigorous arguments. I hope that Yglesias will continue the discussion and provide the more complex, multidimensional model that will help confirm or disconfirm the hypothesis that formalist judges are outside the feasible choice set. Update: Yglesias's most recent post went up after I had finished composing this reply to his earlier post. Be sure sure to read Improving the Model. Thursday, May 13, 2004
The Ninth Amendment Debate: Liberty versus Popular Sovereignty
Introduction I've been very fortunate over the course of the past several months to gain a unique perspective on what promises to be a historic debate over the meaning of the Ninth Amendment. It just so happens that the two major protagonists Kurt Lash and Randy Barnett are both friends, and that I have had many opportunities to discuss the arguments and evidence with both of them. Randy Barnett is the author of Restoring the Lost Constitution, two anthologies on the Ninth Amendment (The Rights Retained by the People: Volume One and Volume Two), and a seminal article, Reconceiving the Ninth Amendment. Kurt Lash is the author of two unpublished but already influential articles on the Ninth, forthcoming from the Texas Law Review (The Lost History of the Ninth Amendment (I): The Lost Original Meaning and The Lost History of the Ninth Amendment (II): The Lost Jurisprudence). Barnett and Lash come from different places. Barnett is a libertarian (a leading figure in libertarian legal theory); Lash would lean more on the social conservative side of the spectrum. My own politics are quite different: Jim Lindgren at Northwestern called me a "virtue liberal," the other day, and I guess that enigmatic label is as good as any. But despite our political differences, Barnett, Lash, and I all share a commitment to originalism as an approach to constitutional theory. It is very important that I express two caveats about what is about to follow. First, Lash and Barnett are both immersed in the primary sources. I know this debate mostly through their eyes (and articles). Second, this post will frequently make claims about what Lash and Barnett believe, and I make those claims in good faith based on extensive reading and conversation, but these are my interpretations of Lash and Barnett’s views and in some cases my rational reconstructions of what I think their views must be. You may interpret them differently, and they may well have changed their views. And of course, it is likely that my understanding of points that both Lash and Barnett have made in conversation departs from what they mean to say. So when I say “Barnett believes” or “Lash believes” please mentally add the qualification that this is Solum’s interpretation and not their own statements of their views. In this post, I am going to make a few comments about their debate over the Ninth Amendment. My aim is not to intervene in the debate, but to shed light on it--to uncover some of the fundamental assumptions that drive Lash and Barnett to make conflicting claims about the meaning of the Ninth. Rights and Federalism What is the Ninth Amendment debate about? At one level it appears to be about two conflicting interpretations of the Ninth Amendment. On the one hand, there seems to be a rights interpretation: the Ninth Amendment protects retained, individual, natural law rights. On the other hand, there is a federalism interpretation: the Ninth Amendment limits federal power by negating a latitudinarian interpretation of Congress's enumerated powers. At a very superficial level, the Ninth Amendment debate seems to be about two opposed and inconsistent interpretations of the meaning of the Ninth Amendment. Appearances Are Deceiving But that isn't what the debate is really about at all. What? Why not? The first key to understanding the Ninth Amendment debate is to see that Barnett and Lash actually agree on a great deal. Barnett is usually seen as a proponent of the rights interpretation, but Barnett fully embraces the idea that the Ninth Amendment operates as a constraint on federal power in general and that it operates to negate latitudinarian interpretations of Congress's enumerated powers in particular. That is, Barnett fully accepts that the Ninth Amendment operates as a federalism provision. And on the other hand, Lash does not deny that the Ninth Amendment by operating as a limit on federal power has the effect of curtailing Congress's ability to invade rights retained by the people, including individual rights, natural rights, and personal rights. Hold on there. You are making it sound like Barnett and Lash actually agree. If that's so, what is all the fuss about? There is a real disagreement between Barnett and Lash, but in order to understand what they disagree about, we first need to get a handle on what they agree about. And this requires be to introduce an important distinction, which I shall articulate in terms of the difference between meaning and effect. Meaning and Effect Both Barnett and Lash can see the (partial) truth in the other's point of view. Barnett sees that the Ninth Amendment limits the national government and hence protects the states against the growth of national power. Lash sees that the Ninth Amendment limits the national government and hence protects individual rights against federal encroachment. But this does not mean they agree about why the Ninth functions in these two ways. Let's distinguish between the meaning and effect of the Ninth Amendment. The meaning of the Ninth is provided by an interpretation--operationally, by a paraphrase that resolves the generality and ambiguity of the Ninth Amendment's language. The effect of the Ninth Amendment encompasses the way the meaning impacts on important constitutional values, such as federalism and rights. The story I am about to tell is schematic and simplified, but I think it captures something very important. Barnett believes that the meaning of the Ninth Amendment focuses on individual rights, and that an effect of the Ninth Amendment is to limit the power of the national government and hence to protect the powers of the states. Lash believes that the meaning of the Ninth Amendment focuses on federalism, and that an effect of the Ninth Amendment is to protect individual rights from invasion by the national government. Lash and Barnett agree that Ninth functions to limit national power, preserve state power, and to protect individual rights. They disagree why and how the Ninth functions in these ways; the why and the how have to do with the meaning of the text. Two Interpretations of "Rights Retained by the People" All of that was very abstract, can you be more specific? Just how do Barnett and Lash disagree about meaning? Here is one simple way of expressing what I see as the core of their disagreement: Barnett believes that the rights retained by the people are fundamentally individual rights. Lash believes that the rights retained by the people are fundamentally political rights. I used the word "fundamentally" for a reason. If you read very carefully, I think you will find that Barnett admits that some of the "retained rights" may be political rights that are retained by the people in a collective sense: thus, the people retain the right to change their form of government, a political right. And likewise, if you read Lash carefully, I think you will find that he does not deny that the rights retained by the people may include individual rights, even natural rights, analogous to the individual rights that are enumerated in what are now the first eight Amendments to the Constitution. But for Lash, the political rights are primary--they are the point of the Ninth. Whereas for Barnett, the individual rights are primary--those are the point of the Ninth. For Lash, the fact that retained rights may include individual rights has the implication that such rights are reserved to the control of the people—via their governments at the state level in the first instance and ultimately in their sovereign capacity to make constitutional changes. The Unavailability of Decisive Cases Assume we are operating with an originalist paradigm, and in particular, within the theoretical assumptions of original meaning originalism. Who is right, Lash or Barnett? As I see it, there is a real problem with finding decisive evidence to adjudicate between their two views. Because their views overlap with respect to the powers of the federal government, almost all of the particular evidence can be explained by both Lash and Barnett. When Lash points to evidence that the Ninth was intended to function to limit federal power, Barnett says, “Of course, that’s what I said.” And when Barnett points to evidence that the Ninth protected individual rights by constraining the scope of federal power, Lash can say, “Of course, that’s what I said.” What is needed is a test case--a case in which the two different accounts of the meaning of the Ninth Amendment actually conflict with each other at the level of application. And we would need that test case to have occurred early on in the history of the Ninth Amendment. But so far as I can tell, there is no such test case. Perhaps Lash and Barnett both believe that the Bank of the United States (and Madison’s speech) is such a test case, but, if so, they would both be wrong. Lash and Barnett’s two theories of the meaning and effect of the Ninth Amendment both produce the same result for the question whether Congress has the power to create a Bank. They both say that the Ninth provides an argument against the power to create the bank, although (I think), they would both agree that it is only a supporting argument and that most of the real work is done by analysis of Article I and in particular by the Necessary and Proper (or Sweeping) Clause. So both Barnett and Lash can explain Madison’s position on the Bank. It is no accident that there is no test case. Lash and Barnett’s theories about the meaning of the Ninth Amendment do not clash at the level of application. They do clash, and I will explain how their theories clash in just a bit, but the clash does not occur at the level of application, and hence decisive evidence is simply not available. The Text of the Ninth Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. If you read this blog frequently, you probably are wondering why I haven’t yet said anything about the text of the Ninth Amendment. It’s time to remedy that. Let’s begin by observing that the Ninth Amendment has a direct and binding effect on Courts (and others charged with constitutional interpretation): The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Rights are enumerated in the Constitution. It could be argued that the enumeration of these rights has the implication that the people do not retain other rights. That implication might in turn be used to support a construction of the Constitution that would expand the power of Congress. For example, it might have been argued that any exercise of Congressional power that was not explicitly forbidden by the rights in Article I, Section 9, and the first eight amendments of the Bill of Rights is by implication permitted under the necessary and proper clause. The Ninth Amendment operates to forbid such constructions. Call this the direct role of the Ninth Amendment. The direct role of the Ninth Amendment is quite limited. It operates only as a rule of construction operates to constrain the power of the national government, particularly Congress. Given the limited nature of this direct role, there is simply no likely scenario in which a difference in application between the federalism interpretation and the rights interpretation could arise in a concrete controversy. The Direct Role and the Evidentiary Role The direct role of the Ninth Amendment is as a rule of constitutional interpretation forbidding latitudinarian constructions of the powers of the national government. But the Ninth Amendment may also have a second role, which I shall call the evidentiary role. The evidentiary role of the Ninth Amendment also flows from the text: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The phrase “others retained by the people” in context clearly refers back to rights. Hence it is uncontroversial that the phrase may be expanded to “other rights retained by the people.” The next move is very straightforward. From the Constitution’s mention of “other rights retained by the people,” one may infer that “other rights [in addition to the certain rights enumerated in the Constitution] are retained by the people.” Although straightforward, this second move is controversial. In particular, the second move rules out the following alternative interpretation, which I shall spell out in full: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others [rights, which may or may not be] retained by the people. The second move marks a crucial divide among interpreters of the Ninth Amendment. If one rejects the second move and adopts the “may or may not be retained” view, then the Ninth Amendment is limited to only one role in constitutional interpretation, the role that I have called the direct role. If one makes the second move, then the Ninth Amendment plays a second role in constitutional interpretation, the role that I have called the evidentiary role. Both Lash and Barnett seem to accept the second move. That is, both Lash and Barnett accept that the Ninth Amendment plays an evidentiary role. But Lash and Barnett disagree about what the evidentiary role is. That is, they disagree about what the constitutional proposition [O]ther rights [in addition to the certain rights enumerated in the Constitution] are retained by the people. means. As I understand Barnett and Lash, they do not entirely disagree. Lash believes that the focal meaning of “other rights retained by the people” refers to political rights retained collectively by “We the People” in our states and in our sovereign capacity to institute, disband, or change our governments, but Lash also believes that retained rights include individual or natural rights. Lash believes that the individual or natural rights are subject to control by the people collectively. Barnett believes that the focal meaning of “other rights retained by the people” refers to natural rights retained by the people as individuals. Barnett also believes that retained rights may include a collective right to revolution and/or to peacefully change the form of government, but that right is subordinate to and qualified by the individual natural rights that it is designed to protect. The Ninth and the States I’ve been reading quite a bit about the Ninth Amendment recently, and one of the issues that comes up most frequently is the question whether the Ninth Amendment limits the power of State governments. Both Barnett and Lash agree that the Ninth plays no direct role in limiting state power. But at the evidentiary level, Barnett believes that the Ninth provides evidence that State power is limited by natural rights retained by individuals, but Barnett contends that these rights did not receive federal protection against state infringement until the adoption of the Privileges or Immunities Clause of the 14th Amendment. Lash believes that the Ninth Amendment actually protects state Power, creating what I shall anachronistically label “islands of state rights of sovereignty” that are protected against federal interference, but not against “We the People” with our sovereign power to institute, abolish, or change our governments. Lash has not provided a full-fledged theory of the Privileges or Immunities Clause of the 14th, but he has intimated that he believes that when the Privileges or Immunities Clause is construed in light of the Ninth, the Ninth actually limits the extent to which the Privileges or Immunities Clause confers rights on individuals against the people operating through their states. Barnett believes that the evidentiary role of the Ninth reinforces his view that the Privileges or Immunities Clause protected natural rights that are retained by the people as individuals as against the states. In other words, Barnett and Lash disagree radically about the evidentiary role of the Ninth Amendment and their disagreement is revealed by comparing their views about the interaction between the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment. A Deeper Level of Disagreement: Liberty and Popular Sovereignty Once we have distinguished between the direct role and the evidentiary role of the Ninth Amendment, we can begin to see that the disagreement between Barnett and Lash is only partially and superficially about the Ninth Amendment. Yes, they disagree about the evidentiary role of the Ninth, but that points to a much larger disagreement about the meaning of the whole Constitution. That deeper disagreement is about the fundamental principles that stand behind individual rights and political rights. At this deeper level, Barnett believes that the Constitution is best understood as a Charter of Liberty. His book, Restoring the Lost Constitution, is subtitled The Presumption of Liberty and his earlier book was The Structure of Liberty. Barnett can find support for his natural law interpretation of the Constitution in the Declaration of Independence and the Lockean strands of thought that clearly were shaping forces in the process that led to the Constitution of 1789 and the Bill of Rights. Lash’s views at the deeper level are less transparent, in part because, unlike Barnett, he has not written about political theory and has not yet produced an integrated work of constitutional theory that would reveal his full view of the Constitution. (I hope very much that we shall see such a work from Lash before too many years go by.) Nonetheless, there are strong clues about Lash’s larger commitments. His work has consistently drawn on idea about popular sovereignty, frequently couched in Ackermanian/Amarian “We the People” rhetoric. Lash seems to understand the Constitution’s fundamental commitment as a commitment to popular sovereignty—to the superior authority of “We the People” and the subordinate role of government, especially the national government. The Burdens of Reason and Deep Commitments John Rawls introduced the idea of the burdens of reason to explain the fact of pluralism. One of his observations is that those who hold different deep commitments will view the same evidence in different ways. The historical evidence about the deep meaning of the Constitution does not decisively endorse either liberty or popular sovereignty as the fundamental constitutional value. Both liberty and popular sovereignty were important to the founding generation. Thus, both Barnett and Lash can find ample evidence for their own view. Given the burdens of reason it is not surprising that Barnett and Lash view the same evidence in different ways. Lash believes that the events surrounding Virginia’s delay in ratifying the Bill of Rights point decisively in favor of his interpretation of the Ninth; Barnett believes that these same events actually favor his interpretation. Disagreements of this sort about the meaning of particular pieces of evidence usually point to other disagreements at a deeper and more fundamental level. Mutual Inclusion Moreover and importantly, each of these two ideas incorporates the other in important ways. Thus, a commitment to liberty entails the collective right of the people to change an oppressive government that violates natural rights of liberty. And a commitment to liberty provides strong reasons to oppose the Hobbesian idea of absolute sovereignty for government and hence to support the notion that ultimate (but not absolute) political power should be dispersed among the people. And popular sovereignty theory can embrace the idea that the liberty of the people should be protected. This flows both directly from the notion that government is the mere agent of the sovereign people, and indirectly from the idea that the effective exercise by the people of the powers of popular sovereignty requires that political rights be supported by others, including many of the individual rights that are viewed as central by the friends of liberty. Because each view incorporates the other in a subordinate role, both Lash and Barnett have a ready explanation for each piece of evidence that seems to support the other. It all depends on how you view the evidence. This is not to say that there are no tensions between liberty and popular sovereignty as fundamental explanatory paradigms in the context of American constitutional theory. There are many tensions, exemplified by the dispute between Barnett and Lash. But given the substantial overlap between these views and given the fact that both views were influences on the founding generation, it is hardly surprising that both the friends of liberty and the champions of popular sovereignty find confirmation for their interpretation of the overall point and purpose of the Constitution in the historical record. Theory and Practice This historical ambiguity is reinforced by another fact. The significant actors in the framing of the Constitution of 1789 and the proposal and ratification of the Bill of Rights were men of action. They were concerned with the art of the possible and the real dangers that faced the young republic—much more concerned with these practical exigencies than with the niceties of political theory. Kurt Lash’s work relates the story of Randolph’s objections to the Bill of Rights on the ground that the Ninth Amendment had departed from the Virginia proposal in a way that seemed to tilt away from an explicit focus on state’s rights. Madison attempted to reassure Randolph that the function (deliberately neutral between meaning and effect) of the Ninth as drafted was equivalent to the function of the counterpart provision in Virginia’s proposal. But Madison’s comments (as I read them) also reveal a certain impatience with Randolph’s objection, which was too theoretical for Madison’s taste, given that the difference in language did not seem to make any practical difference in application. In one sense, the lesson of history is that Randoph was right and Madison was wrong. In the long run, the ambiguity in the text has had practical effects as the Ninth Amendment has influenced the larger enterprise of integrating the Constitution as a coherent whole. The Hermeneutic Circle Because the meaning of the whole constitution is gleaned from the meaning of each part (and likewise the meaning of each part reflects the meaning of the whole), the evidentiary function of the Ninth Amendment has had an enduring importance. The constitutional debate that is conducted in the culture at large is reflected in and reflects the constitutional debate in the legal academy. And so, when Barnett and Lash dispute particular pieces of evidence in a debate that seems to be about the Ninth Amendment, their clash represents a much larger struggle—an ongoing debate about the meaning of the American Constitution at the deepest and most fundamental level. Conclusion These great debates are not won or lost on the basis of particular pieces of evidence. Even if one side or another were to prevail about the Ninth Amendment, the debate would simply shift to other grounds. The grand theories of constitutional meaning stand or fall as a whole. Such theories usually gain adherents from among the undecided, students of constitutional law and theory. Although adherents are occasionally lost to the rare “conversion experience,” it is more common that such views lose support through the grim attrition of professional inactivity, retirement, and death. So I do not expect the Barnett-Lash debate to produce a clear victor or a settled meaning for the Ninth Amendment. By saying this I do not mean to imply that such debates are not productive; nor do I mean to say there won't be better and worse arguments. But the effects of such debates are primarily manifested as adjustments made within constitutional paradigms rather in wholesale shifts from one paradigm to another. How fortunate we are to have two such able representatives for two great constitutional theories, Barnett, the friend of liberty, and Lash the champion of popular sovereignty, reenact that great debate in the here and now, with the Ninth Amendment, the Delphic oracle of constitutional theory, as the platform they share. Thursday Calendar
At Santiago de Compostela (Spain), there is a conference entitled Hilary Putnam's Pragmatism. Barnett's Challenge On the Volokh Conspiracy, Randy Barnett has a post entitled Originalist Sacrifices. Here is a taste:
Symposium Announcement: Empirical Measures of Judicial Performance
The availability of data on the judiciary presents a fertile opportunity for the empirical study of judges and courts. In the political realm, claims of merit are regularly made in the process of vetting judicial appointments, but these claims are rarely evaluated against the empirical evidence. One of the more provocative studies of the topic, by Professors Stephen J. Choi and Mitu Gulati, argues that the availability of data and techniques for study of judges should give rise to a tournament of judges, in which promotions to the U.S. Supreme Court consider quantitative measures, as well as qualitative claims, of merit. Choi and Gulati raise the issue in their article A Tournament of Judges?, forthcoming in CALIFORNIA LAW REVIEW (Jan. 2004). In a more recent article, Choi and Gulati present the empirical results of their tournament for federal appellate judges. For an earlier empirical study focusing on citation of federal appellate judges, see William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Study of Federal Courts of Appeals Judges, 27 JOURNAL OF LEGAL STUDIES 271 (1998). Inspired by efforts such as Choi and Gulati’s, the editors of Florida State University Law Review will devote an entire issue of an upcoming volume to essays and articles that address the topic of empirical measures of judicial performance. Papers published in the symposium issue are expected to address the following questions: -Is it appropriate to measure and rank judicial performance? -How should one do these measurements? -What would be the incentive effects of doing this? Contributions are expected to in the range of 30 double-spaced pages. Papers should be received by September 1, 2004. It is expected that this symposium issue will be published in Spring 2005. Contributors: -Mita Bhattacharya & Russell Smyth, Monash University Department of Economics -James J. Brudney, Ohio State University College of Law -The Honorable Jay Bybee, U.S. Court of Appeals for the Ninth Circuit -Stephen Choi & Mitu Gulati, Boalt Hall School of Law -- UC Berkeley & Georgetown University Law Center -Brannon Denning, Samford University, Cumberland School of Law -Lee Epstein & Nancy Staudt, Washington University-St. Louis School of Law -Daniel Farber, Boalt Hall School of Law -- UC Berkeley -Tracey George, Northwestern University School of Law -Michael Gerhardt, William & Mary School of Law -Steven Gey, Florida State University College of Law -Steven Goldberg, Georgetown University Law Center -John V. Orth, University of North Carolina School of Law -The Honorable Richard Posner, U.S. Court of Appeals for the Seventh Circuit -B.J. Priester, Florida State University College of Law -Jim Rossi, Florida State University College of Law -The Honorable Bruce Selya, U.S. Court of Appeals for the First Circuit -Michael Solimine, University of Cinncinatti School of Law -Lawrence Solum, University of San Diego School of Law -Ahmed Taha, Wake Forest University School of Law -David Vladeck, Georgetown University Law Center Call for Papers: Trade as the Guarantor of Peace, Liberty, and Security
AMERICAN SOCIETY OF INTERNATIONAL LAW, INTERNATIONAL ECONOMIC LAW INTEREST GROUP (IELG) ANNUAL MEETING February 24-26 2005 Washington D.C. TRADE AS THE GUARANTOR OF PEACE, LIBERTY AND SECURITY? "Trade is the principal guarantor of peace in the World." John Stuart Mill The 19th century French economist, legislator and writer Claude Bastiat is widely quoted as saying "if goods do not cross borders, armies will." The view of free trade as a promoter of peace and liberty has been embraced by many Philosophers, from Immanuel Kant ("The spirit of trade cannot coexist with war.") to Ralph Waldo Emerson ("The philosopher and lover of man have much harm to say of trade; but the historian will see that trade was the principle of liberty.") This conference examines the validity of this belief, from both historical and modern day perspectives. The aim of the conference is to explore the relationships between the ideology of free trade and ideals of liberty, human dignity and peace. Does the modern day experience with international trade and business support the view that trade is a guarantor of peace and liberty? For example, does the fact that certain regions of the world, such as the Middle East, are largely excluded from the current multilateral trading system support or conflict with the vision of trade as a guarantor of peace? Is the metamorphosis of the European Steel and Coal Community into the European Union an anomaly or the future paradigm? If business is a cultural artifact, do rules that promote transnational business enhance sharing or imperialism? Is there a tension between regionalism and globalism? In addition to peace, is there a relationship between trade and concepts such as unity or equality? Are new organizations required to manage a relationship between trade and peace and liberty? To what extent do the rules and underlying policies of the current multilateral trading system help promote global peace? If Justice is a prerequisite to Peace, to what extent, if any, does trade address Justice? To what extent is or should a "democracy clause" be included in trade agreements? Is the inclusion of such a clause based on the view that democracies do not go to war with one another? PAPER SUBMISSIONS: This call for papers invites submissions that relate to the general theme of the conference. All types of submissions including interdisciplinary work are welcome. Papers can be historical, theoretical, or empirical, and can address broad linkages or specific questions, global regimes or regional structures. SUBMISSION PROCEDURE: Submissions of abstracts of papers (no more than three (3) pages in length) should be sent to the following current IELG Co-Chairs no later than Friday May 21, 2004: CONTACT: Padideh Alai Professor of Law American University Washington College of Law 4801 Mass Ave. Suite 330 Washington D.C. 20016 Fax: (202) 274-4130 Email: MAILTO:palai@wcl.american.edu AND CONTACT: Phil Nichols Associate Professor of Legal Studies The Wharton School of the University of Pennsylvania 3702 Walnut Street Philadelphia, Pennsylvania 19104 Fax: (215) 573-2006 Email: MAILTO:nicholsp@wharton.upenn.edu The IELG Annual Meeting Planning Committee will review the papers and the authors of the abstracts that are picked for presentation at the annual conference and possible subsequent publication in a symposium journal will be informed by no later than the end of June 2004. Wednesday, May 12, 2004
Formalist Constitutionalism or Quasi-Parliamentarianism?
Stephen Bainbridge and I have been engaged in a debate about the alternatives to an empowered realist judiciary. It started with my followed by Bainbridge's which prompted my to which Bainbridge replied in leading to my follwed by Bainbridge's final words in Clash and Consensus Bainbridge and I agree on an important point: unbounded judicial interpretation of the constitution threatens the rule of law, but we disagree about how to respond. I've argued for a revitalization of legal formalism and the appointment of judges with the virtue of justice--a disposition to follow the rules laid down and not to rely on one's own views about what the law should be. Bainbridge has argued for a quasi-parliamentary system of legislative supremacy, brought about, not through constitutional amendment, but instead through judicial nullification of the general and abstract provisions of the constitution that confer individual rights (e.g. freedom of speech, due process, equal protection, and privileges and immunities) and constrain government powers (e.g. the system of enumerated powers in Article I). Interestingly, our debate has not been focused on the normative question (which system is better?), but instead has centered around the question of comparative feasibility (which system is more likely to be a real and actual practical possibility?). Bainbridge argues that a return to legal formalism simply isn't feasible and that there is a real practical possibility of judicial transformation of our system into a quasi-parliamentary system. I've argued that there are structural obstacles to such a transformation and that a return to formalism is within the feasible choice set--at least in the long run. What I've Learned From my point of view, this has been a most satisfying exchange, because the disagreement between Bainbridge and myself has grown more focused, arguments have been extended, and new lines of argument have emerged. This will be my final post in the exchange, with comments on a few points, with a special emphasis on what I've learned from the exchange: The Role of the Legal Academy One of Bainbridge's really nice points is that a revitalization of legal formalism would require a transformation of the legal academy. As Bainbridge puts it, "Fixing legal education is critical because it is where the opinions of future judges are forged. Would Solum deny that the vast majority of modern legal elites have been inculcated with realism?" I agree with both points. Legal education is critical because it has a shaping effect on the legal culture, and realism currently dominates the legal academy. Of course, Bainbridge's point applies with substantial force to his own preferred alternative--a transition to a quasi-parliamentary system. Why? Because the same realist heritage that poses an obstacle for neoformalism also has inculcated "judicial supremacy" as a basic tenet of our legal culture. One way of seeing this point is to think about Brown v. Board. The unshakeability of Brown is deeply engrained in our legal culture, but quasi-parliamentarianism (in any truly consistent form) would require that Brown be overruled. Of course, its more than Brown, it is the entire corpus of free speech jurisprudence, the privacy cases (with Griswold rather than Roe as the decision that is considered untouchable). And I haven't yet mentioned the strong allegiance of (much of) the academic right to the Supreme Court's new federalism cases. But having conceded the real force of Bainbridge's point, I want to observe that radical academic transformations are not only possible, they are actually encouraged by important features of academic culture. The academy loves a paradigm shift, in which an older generation of scholars is pushed aside by adherents of a new paradigm. This occurred in the legal academy when the realists pushed aside an older generation of formalists. In my view, the realist program in legal theory is analagous to what the philospher of science, Imre Lakatos, called a "degenerating research program." The problems for legal realists continue to stack up, ignored or buried with elaborate rationalizations. Much of the most vibrant work in legal theory rejects the realist paradigm. This is most clearly the case in constitutional theory, where originalists of the left (Ackerman) and right (a whole host) hold center stage. Of course, paradigm shifts take years and decades, not weeks and months, but surely that is also the time frame for any possible transition to Bainbridgean quasi-parliamentarianism. The Path to Bainbridgean Quasi-Parliamentarianism In his most recent post, Bainbridge takes up the challenge to offer a specific mechanism for the transition to a quasi-parliamentary system, given the reality that judges who adhere to this radical paradigm must be nominated by the President and confirmed by the Senate (with the filibuster creating a veto gate for a minority party with effective control over 41 votes). Here is Bainbridge's suggestion: The nuclear option. Section 2 of Article III of the Constitution provides: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Let Congress exercise that power. In other words, Congress could deprive Supreme Court of appellate jurisdiction in order to prevent the Court from invalidating legislation. This could be done selectively (no jurisdiction in cases involving the Pledge of Allegiance or School Prayer) or across the board (no jurisdiction in cases involving a challenge to an Act of Congress). Wow! As Bainbridge undoubtedly knows, this option raises a host of issues. The use of the exceptions power might be struck down as a violation of the separation of powers if used to provide a "rule of decision," i.e. to determine the outcome of cases rather than for procedural purposes. Congress would also have to close the lower federal courts, or judicial power would simply be relocated from the Supreme Court to the Courts of Appeal. Even if all of the federal courts were closed, state courts would remain open, and additional complex constitutional questions are posed by any attempt to close all courts to a class of constitutional claims. And how would this legislation get through the Senate? (Let's assume the President supported it.) As Bainbridge predicted, "Prof. Solum will respond that any such attempt would be subject to Presidential vetoes and/or Senate filibusters. I'll concede in advance that it would be really tough to surmount those obstacles. Yet, I still think it would be easier than reviving formalism." But there is no possibility of the Democratic minority not filibustering such a jurisdiction stripping bill. There are structural reasons why Senators will not eliminate the filibuster (roughly, because the filibuster is an integral part of the system of Senatorial perogatives that enhance the power of each and every individual Senator). In other words, the elimination of judicial review through ordinary jurisdictional legislation is "pie in the sky," unless there is a fundamental realignment of political forces. The Feasibility of Formalism Of course, even if I'm right about the barriers to Bainbridgean quasi-parliamentarianism, there is still the very serious question whether a formalist revival is real and actual practical possibility. One of the nice things about the exchange is that I've learned that Bainbridge (and presumably many others) have a firm and abiding conviction that the possibility of formalist judging has been irretrievably lost. Here are my reactions to two of Bainbridge's specific points: Is Formalism Tilted? In Majoritarianism, Formalism, and the Feasible Choice Set, I presented a model of the judicial selection process. The model predicts that formalist judges are in the feasible choice set. Although the right prefers right-realist judges and the left prefers left-realist judges, both left and right can compromise on formalist judges who are somewhere in the political center. Bainbridge challenges one of the premises of the model with the following argument: [F]ormalism will be perceived as having an ideological component, then Solum's feasibility argument collapses because formalists will be perceived (often wrongly) by the left as being unconfirmable rightwingers. This is an important move--one that I've encountered in many conversations about neoformalism. If legal formalism favors the right, then the left will exercise its control over various veto gates (e.g. filibuster of judicial nominees) to prevent a transition to formalism. A thorough discussion is the topic of a separate post (or law review article), but in my opinion, the key to the issue is the role of precedent in a neoformalist theory of constitutional interpretation. If neoformalist judges begin with the tradition notion of respect from strong stare decisis, formalism is a live option for bo the left and the right. I believe that the strongest version of neoformalism does incorporate a very muscular doctrine of precedent. You can find my arguments for this thesis in a series of three posts The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument, Part II: Stare Decisis and the Ratchet, and Part III: Precedent and Principle. Very roughly, formalism that incorporates stare decisis would lead to a gradual transition from the current mixed Warren-Burger-Rehnquist court legacy to an originalist constitutional jurisprudence over a period of several decades. Update: Matthew Yglesias makes a related point in a post entitled Feasible Choices (about which I may have more to say later), asking whether someone like Randy Barnett would be in the confirmation zone? Of course, Barnett has no track record as a judge creating information problems. But suppose we had a Barnett counterpart, who had served as a Court of Appeals judge or state supreme court justice. My view is that under the right political conditions the confirmability of a candidate like Barnett would depend on the candidate's attitude towards precedent. Barnett himself has not articulated his theory of the relationship between precedent and original meaning, but as a judge he would have been prompted to do this on many occasions. Has the Virtue of Justice Vanished? Bainbridge has another objection to the feasibility of a neoformalist revival: "Prof. Solum seems to be operating on faith - belief in things unseen. Specifically, faith that there is a pool of formalists who would be appointable and acceptable to both sides of the partisan divide." Or as he asked in an email, Is there "really is a pool of formalists out there?" Great question! From my point of view, Bainbridge's question can be reformulated as: "Does anyone posssess the virtue of justice--the disposition to decide cases on the basis of the rules laid down and to resist the temptation to decide on the basis of one's own view of what the law should be?" Or to put the question a bit differently, "Has the prevalence of legal realism and the politicization of the judicary so degraded the character of American lawyers and judges so that the vice of legal realism has become pervasive?" This is, of course, a complex empirical question. In this post, I can only offer personal testimony. My sense is that many lawyers and judges have the virtue of justice. But I also think that in the current political environment, the ordinary lawyer or judge who believes in decision on the basis of the rules laid down rather than political ideology is very unlikely to receive much attention from the legal academy or from those who screen candidates for the Supreme Court. Moreover, the virtue of justice will flourish when it is supported and wither in a hostile environment. Commitment to the rule of law begins to look foolish when ideological judging is the norm, but in an environement where the virtue of justice was supported and reinforced, one would expect that the complex dispositions that constitute the virtue would become stronger and more prevalent. Thus, we would expect that the appointment of a neoformalist majority on the Supreme Court would establish the conditions where formalism could flourish among the judges of the lower federal courts. A Meta-Theoretical Point About Feasibility There is one final point where the exchange with Bainbridge has been edifying. How should legal theorists argue about feasibility? I suggested: Bainbridge’s argument relies in a crucial way on our intuitive sense of what is feasible and what is utopian. But feasibility isn’t really an intuitable quality! Bainbridge replied: What else do we have to rely on? Solum and I agree that the system is broken. Solum says: Let's try "Aretaic Judicial Selection." I say "It won't work." We're both making predictions. We both must make our best guess as to what the future would hold under specified conditions. If politics is the art of the possible, we have to use our informed intuition as to what is possible. I don't want to reply, but I do want to make an observation. I'm convinced of two points: (1) Arguments about feasibility often do the crucial work in superficially normative disputes within legal theory, and (2) Well-grounded theories should replace intuitions (informed or not) as the basis for resolving feasibility issues. Clearly, I have not been able to communicate these points in a manner that Bainbridge finds persuasive. The lesson for me is that more work is required on this issue. Conclusion By way of conclusion, let me simply thank Bainbridge for his generosity as a partner in this extended exchange. He has been uniformly fair and especially responsive to some very long posts! Be sure to read his lastet post in full! Forbath on Ferejohn & Sager William E. Forbath (University of Texas at Austin - School of Law) has posted The Politics of Constitutional Design: Obduracy and Amendability - A Comment on Ferejohn and Sager (Texas Law Review, Vol. 81, p. 1966, 2003) on SSRN. Here is the abstract:
More than that, obduracy on the order of the U.S. Constitution may actually erode and thwart a nation's capacity for realizing many of its deepest constitutional commitments. Ferejohn and Sager's commitment-centered case on behalf of Article V rests on a court-centered model of how the Constitution's substantive commitments have been elaborated and enforced. According to this model, popular challenges to judicial interpretations have been a threat to the realization of those commitments. Because popular oversight of the process of constitutional interpretation and enforcement is a threat, we are fortunate that Article V makes such involvement and oversight an extremely daunting, protracted and procrastinating process. But this model is too simple by half. Popular constitutional politics, including popular challenges to judicial interpretations, have had a more complex relationship to judge-made constitutional law. Popular political challenges have been both a threat to and an essential source of the justice-seeking elaboration of the Constitution's substantive commitments. Social movements, including popular efforts to amend the Constitution, have proved an indispensable crucible of the very judicial interpretations Ferejohn and Sager prize. A Constitution too obdurate can and, in several important cases, has stifled this generative process. If that is the case, then the design objective Ferejohn and Sager invoke in defense of obduracy demands instead a balancing of obduracy and amendability; or so this essay argues, via whirlwind tour of twentieth-century U.S. constitutional history and a comparative coda that takes a glimpse at how well the experience of other nations seems to square with Ferejohn and Sager's thesis. Yuracko on Trait Discrimination Kim Yuracko (Northwestern University School of Law) has posted Trait Discrimination as Sex Discrimination: An Argument Against Neutrality (Texas Law Review, Vol. 83, 2004) on SSRN. Here is the abstract:
Lash Responds to Barnett Kurt Lash responds to Randy Barnett's post entitled The Stubbornness of Facts: Judicial Conservatives and the Ninth Amendment (responding to Kurt's email posted at Lash on Barnett & the Ninth Amendment). Here are the comments that Kurt emailed for posting:
But before proceeding further in a mini-debate, I want to acknowledge the very important work Randy Barnett has done on the Ninth Amendment. His two-volume compilation of essays on the Ninth focused scholarly attention on an amendment which, since 1937, had been largely forgotten. Although Randy has departed somewhat from his original arguments regarding the Ninth, he has developed new and significant theories regarding the necessary and proper clause and limits on federal power. For this reason, his latest book is an important work and it deserves to be read. But Randy's work on the original meaning of the Ninth Amendment was penned before significant historical evidence came to light. This evidence not only illuminates the original meaning of the Ninth, it also casts a very different light on evidence which Randy continues to rely upon in his critique of other scholars. My post on Larry Solum's website was intended to encourage Randy to acknowledge this evidence and its significance for anyone interested in the original meaning of the Ninth Amendment. I believe the evidence suggests that the Ninth Amendment originally was understood to limit the construction of federal power in order to maximize the people's freedom to regulate all non-delegated subjects at a state level. This is how Madison understood the Ninth Amendment, and this is how courts construed the Ninth Amendment for close to two hundred years. The very first Supreme Court opinion discussing the Ninth Amendment, written by Justice Joseph Story, applied the Ninth Amendment in just this manner. I have presented this evidence in two articles, both currently posted on the SSRN website and both are to be published in the Texas Law Review. Randy is correct: The articles are long and they have "gobs of footnotes." In his post, Randy makes essentially three points about my first article. First, he associates my work with that of Caplan and McAffee. There is nothing to say about this beyond noting that Caplan and McAffee also have done important work on the Ninth Amendment. Randy knows my argument is based on historical fact and that I do not "dismiss" the Ninth or call for it to be ignored, but present it as a textual basis for judicial enforcement of federalism. Randy's second point is that I have vastly over-stated the novelty of the evidence in the first article (Randy does not discuss the second piece). Once again, this seems more rhetorical than substantive. In the article, I make clear that some of the evidence I present is new, while other evidence has been known about, but now can be viewed in a new light given newly discovered evidence. Randy concedes that some of the evidence I present is in fact "new and interesting." In fact, there is more than Randy mentions. Together, the two articles discuss the state precursors to the Ninth (which Randy has not discussed), the Virginia debate (which no one has), Roger Sherman's version of the Ninth (which Randy has not discussed), Madison's draft veto of the Bank Bill (which no one has addressed but which seriously calls into question Randy's analysis of Madison's Bank speech), the first Supreme Court opinion discussing the Ninth (which no one has even known about), and over one hundred years of jurisprudence (which no one has discussed). And this does not include how this new evidence sheds significant light on previously known materials like Madison's letters and speeches. Perhaps I have vastly over-stated the novelty of all this, but I don't think so. In the end, however, it is not novelty that matters, but whether this "lost history" helps to illuminate the original meaning of the Ninth Amendment and its relationship to the Fourteenth Amendment. This leaves Randy's third response. He writes that the "centerpiece" of my article involves a "new an interesting" debate regarding the Ninth Amendment which occurred in the Virginia Assembly and which until now, as Randy points out, has "gone unexamined in the literature." Readers unfamiliar with Ninth Amendment scholarship may not fully grasp Randy's comments or why the Virginia debates might be important. In this forum I can only briefly trace the issue. Up until now, one of the few pieces of evidence scholars had regarding Madison's vision of the Ninth Amendment was a letter Madison sent to President Washington. In that letter, Madison reported that Virginia Governor Edmund Randolph objected to the final language of the Ninth Amendment. Randolph preferred Madison's original draft of the Ninth which had used language similar to that suggested by the Virginia ratification convention. Madison's original draft included a rule of interpretation which prohibited the constructive enlargement of federal power, while the final draft spoke only of guarding retained rights. Randolph feared that the effect of the Ninth had been altered. Madison, however, believed that Randolph's fear was unwarranted (altogether fanciful). In his letter, Madison wrote that both the original and final drafts accomplished the same thing: "[I]f a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended." A number of scholars, including Randy, have struggled with this letter, for it appears to adopt what some have called the "rights-powers" fallacy whereby limiting power amounts to the same thing as protecting rights. Randy in particular has argued that Madison did not mean to embrace such a fallacy, but was merely noting two complementary strategies for protecting individual rights-and the final version of the Ninth adopted the strategy of protecting (non-enumerated) retained rights. Whether or not one finds Randy's argument plausible (the letter does seem to adopt the "fallacy"), what is surprising is that no Ninth Amendment scholar had previously explored Randolph's objections. Randolph's preference was for the Virginia convention's drafts of what would become our Ninth and Tenth Amendments. Those drafts prohibited expansive interpretations of federal power and further declared "that each state in the Union shall respectively retain every power, jurisdiction and right, which is not by this constitution delegated to the congress of the United States." Madison did not respond to Randolph's concerns by denying states retained every power jurisdiction and right. Instead, he argued that Randolph's distinction between the original and final version of the Ninth was "altogether fanciful." Both the original and final draft of the Ninth accomplished Randolph's desired objective. To Randolph, however, Madison's arguments were no more than "plausible." In fact, Randolph initially halted Virginia's drive towards ratification of the Bill of Rights due to his concerns about the Ninth Amendment. The Virginia Senate ended up drafting a report calling on Congress to clarify whether the final version of the Ninth was meant to track Virginia's original federalist proposal or whether it was some kind of effort to protect individual rights. The preference of the Virginia Assembly was obvious. Unfortunately, anti-federalists in Virginia managed to exploit Randolph's concerns (which he soon withdrew) and delay ratification for two years. During that time, Madison-Virginia's Representative--delivered a major speech on the Bank of the United States in which he expressly linked the Ninth with the Tenth Amendment, both standing as guardians of state autonomy. Virginia was entitled to rely on this description of the Ninth Amendment and, months later, Virginia ratified ten amendments, including the Ninth. The Virginia debate is significant for a number of reasons. Randolph wanted an amendment which adopted Virginia's (and other states') demand that construction of federal power be limited in order to preserve autonomy of the states. Madison's statement that the final language of the Ninth accomplished the same thing as Randolph's preferred version suggests that Madison shared a federalist reading of the final Ninth Amendment (a point confirmed in Madison's speech on the Bank of the United States). The Virginia debate not only helps to clarify Madison's letter, it also reveals that the key state of Virginia demanded a "federalist Ninth" and ratified only after a public speech by Madison in which he declared that the proposed Ninth in fact stood as an expression of federalism. Finally, the controversy arose only in one state, suggesting that the other states were not similarly concerned that the effect of the amendment had changed from its initial to its final draft. As much as Randy might want to focus on the changed language of the Ninth and Virginia's complaint, the fact remains that Madison's original version of the Ninth satisfied those who called for a federalist provision, Madison described the final version as satisfying those concerns, and he gave a major speech in which he publicly explained (to, among others, a state assembly thinking about ratifying the amendment) that the final version of the Ninth worked alongside the Tenth Amendment to preserve state autonomy. But the story does not end with Madison. In the first Supreme Court opinion to discuss the Ninth Amendment, Joseph Story followed the lead of James Madison (who had appointed Story) and described the Ninth as a provision which limited the construction of federal power in order to preserve the concurrent powers of the states. This federalist reading of the Ninth Amendment was repeated by court after court for two hundred years. All of this is presented in the second article. This is but a brief summary of the evidence and the arguments I lay out in my articles. There is much more. I encourage those who are interested to explore the historical record-whether in my articles or in Randy's books-and come to their own conclusions. Two final points, however: First, the above refers mainly to the original meaning of the Ninth Amendment and does not address the impact of the Fourteenth Amendment. I discuss this issue in the second article. Secondly, I have referred to several examples of Founders linking either an early draft or the final version of the Ninth to principles of federalism. There is no historical evidence that any Founder referred to the Ninth Amendment as protecting unenumerated individual natural rights. Again, I appreciate Randy's willingness to address the evidence and I look forward to our further discussions. Conference Announcement: Reasonable Questioning: Scanlon & the Contractualist Picture of Morality
PHILOSOPHY PROGRAMME presents a Two-day Conference REASONABLE QUESTIONING: SCANLON AND THE CONTRACTUALIST PICTURE OF MORALITY 10.00 A.M. TO 5.45 P.M., FRIDAY 4 & SATURDAY 5 JUNE 2004 THIRD FLOOR, SENATE HOUSE, LONDON WC1 with the generous support of MIND and the British Academy PROGRAMME Running schedule to be determined shortly please check webpage below for updates. To Register please email philprog@sas.ac.uk with 4/5 June as the subject header. Special Fees Apply to be taken on the first day. Confirmed Speakers Stephen EVERSON (York) Frances KAMM (Harvard) Jimmy LENMAN (Sheffield) Veronique MUNOZ-DARDE (UCL) David OWENS (Sheffield) T M SCANLON (Harvard) Andrew WILLIAMS (Reading) Confirmed Respondents Mark KALDERON (UCL) Hallvard LILLEHAMMER (Cambridge) Mike MARTIN (UCL) Martin O'NEILL (Harvard) Mike OTSUKA (UCL) Convened by Veronique Munoz-Darde TWO DAY FEES SCHEDULE (please settle on first day) MEMBERS-CONCESSIONS (Students, Retired, Unwaged) £10 STANDARD £20 (including London Faculty) NON-MEMBERS- CONCESSIONS (Students, Retired, Unwaged) £25 STANDARD £30 MEMBERS Individual Philosophy Programme Subscribers OR Current Staff and Students of the Philosophy Departments at the following Universities: University of London (Birkbeck, Heythrop, Kings, LSE, UCL, IoE); APU; Birmingham; Bristol; Cambridge Hertfordshire; Keele; Kent; Manchester; Middlesex; Nottingham; Open; Oxford; Reading; Southampton; Surrey; Sussex; UEA; Warwick; York Cheques (on day) payable to "UNIVERSITY OF LONDON" http://www.sas.ac.uk/philosophy/REASONABLE_QUESTIONING.htm Call for Papers: Studies in the History of Ethics
• ethical theory/normative ethics • metaethics • applied ethics • moral psychology • social and political philosophy • legal philosophy SHE will publish its first volume in fall 2004. To be included in this first issue, submissions should reach the editors by July 15, 2004. Please visit SHE at www.historyofethics.org for more information. Thank you! Michael Cholbi Department of Philosophy, Cal Poly Pomona mjcholbi@csupomona.edu Wednesday Calendar
Tuesday, May 11, 2004
Woolhandler & Nelson on Standing Ann Woolhandler and Caleb Nelson (University of Virginia - School of Law and University of Virginia - School of Law) have posted Does History Defeat Standing Doctrine? (Michigan Law Review, Vol. 102, February 2004) on SSRN. Here is the abstract:
This article disagrees. In the nineteenth century, courts enforced an active law of standing (although not so called) that cut across various causes of action, and that reflected the distinction between public and private rights. Courts regularly designated some areas of litigation as being under public control and others as being under private control. What is more, and contrary to the standing critics, the Supreme Court often did discuss these issues in constitutional terms, particularly in actions against federal and state governmental officials. We do not claim that history compels acceptance of the modern Supreme Court’s vision of standing, or that the constitutional nature of standing doctrine was crystal clear from the moment of the founding on. The subsistence of qui tam actions alone might be enough to refute any such suggestion. We do, however, argue that history does not defeat standing doctrine; the notion of standing is not an innovation, and its constitutionalization does not contradict a settled historical consensus about the Constitution's meaning. Carrier on Curbing Intellectual Property Michael A. Carrier (Rutgers University School of Law - Camden) has posted Cabining Intellectual Property Through a Property Paradigm (Duke Law Journal, Vol. 54, P. 1, October 2004) on SSRN. Here is the abstract:
After surveying fifty-five doctrines in property law, Professor Carrier synthesizes limits based on development, necessity, and equity. He then utilizes these limits to construct a new paradigm for intellectual property. The paradigm facilitates the reorganization of defenses currently recognized by courts as well as a more robust set of defenses, which include (1) a new tripartite fair use doctrine in copyright law, (2) a new defense for public health emergencies and a recovered experimental use defense and reverse doctrine of equivalents in patent law, (3) a development-based limit to trademark dilution, and (4) a functional use defense for the right of publicity. By adopting the paradigm of property, intellectual property has opened the door to limits. The time has come to rediscover these limits. The future of innovation and democracy lie in the balance. Spiro Reviews Aleinikoff Peter J. Spiro (Hofstra University School of Law) has posted The Impossibility of Citizenship (Michigan Law Review, Vol. 101, pp. 1492-1511) on SSRN. Here is the abstract:
With citizenship as a baseline, the argument is a powerful one. But one might at a more fundamental level question the continuing utility of that baseline and of citizenship as an institution. An emerging body of postnational scholarship is challenging citizenship and the nation-state as delimitations of human community, posing instead diasporas, social movements, and other nonstate groupings as competing locations of identity and governance. Aleinikoff brackets the postnational assault; he is seeking to transform citizenship, not transcend it. In this respect, the analysis presents more of an exercise in recentering citizenship than - as claimed - one of decentering it. But the postnational challenge is unavoidably implicated in any attempt to deploy citizenship as an institutional vehicle. Even as an expansive and benign quantity, Aleinikoff's vision of citizenship may suffer the same problems as its exclusionary predecessors: however the circle is drawn, many are left out, including many with deep attachments to the national community. To the extent, on the other hand, that the circle is drawn ever more widely, the tie that citizenship is understood to represent grows ever thinner. This dynamic would seem to present an inescapable dilemma for the institution of liberal citizenship, and perhaps for liberalism itself. Zaring on Institutional Reform Litigation David T. Zaring (New York University - School of Law) has posted National Rulemaking Through Trial Courts: The Big Case and Institutional Reform (UCLA Law Review, Vol. 51, No. 1015, 2004) on SSRN. Here is the abstract:
The article accordingly focuses on the structural character of institutional reform litigation from a national perspective. As it turns out, the system operates through information exchanges by repeat players who participate in multiple institutional reform cases, most commonly as counsel or expert witnesses, but also as parties (or, occasionally, judges) involved in multiple lawsuits. These participants facilitate the adoption of common standards by preferring familiar remedies, by valuing interoperability between cases, and by succumbing to the inertial momentum that these preferences, when placed in the context of the system, can create. The result is a different kind of law, one low on reasoned elaboration and high on best-practices-style copying. The article describes the phenomenon and analyzes it through two qualitative case studies. It also reviews the prior literature on institutional reform litigation and compares the network to other examples of regulatory standardization from below. Although principally descriptive, the article concludes with a brief evaluation of the implications of ad hoc standardization through trial court litigation. Petit on the Ninth, Glorious or Otherwise Over at Scrivener's Error, C.E. Petit has a post entitled The Not-So-Glorious Ninth, commenting on recent posts by Bainbridge and myself. Barnett on Lash Over at the Volokh Conspiracy, Randy Barnett assesses Kurt Lash's recent scholarship on the Ninth Amendment in a post entitled The Stubbornness of Facts: Judicial Conservatives and the Ninth Amendment. As readers of this blog know, I'm a big fan of both Kurt and Randy's work. Randy's post is just the first move in what is likely to be a very illuminating debate--most of which will likely be conducted in the law journals rather than the blogosphere. Tuesday Calendar
At Oxford, David Wiggins presents the Hart Memorial Lecture. At Texas, Louise Weinberg (University of Texas) presents Back to the Future: The New General Common Law. |