Legal Theory Blog

Tamanaha on the Lexicon on the Nature of Law

Brian Tamanaha comments on the latest Lexicon entry over at Balkinization.  His thoughtful reaction prompted the following addition to my post:

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

His piece can be found here.

Marmor on Pragmatics & Legal Language

Andrei Marmor (University of Southern California - Law School) has posted The Pragmatics of Legal Language on SSRN. Here is the abstract:

In most standard cases, the content of the law is tantamount to the content that is communicated by the relevant legal authority. It has been long noticed by linguists and philosophers of language, however, that the content of linguistic communication is not always fully determined by the meaning of the words and sentences uttered. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed is very often pragmatically enriched by other factors. My purpose in this essay is to explore some of the pragmatic aspects of understanding what the law communicates. I argue that in some respects the pragmatics of legal language is unique, sometimes uniquely problematic. Exploring those problems forms one of the aims of this essay. But I suggest that we can do more than that: by drawing on the distinctions between the various pragmatic aspects of language use, we should be able to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions.

And from the text:

The pragmatic aspect of language use is typically associated with two key ideas: one idea refers to the prevalent role that context plays in understanding the content of an act of communication. The second idea is related to the distinction between what has been said or asserted, and what has only been implied or implicated.3 It is important, however, not to conflate these two issues: context may play a crucial role in our ability to understand what has been asserted whether there is any further implicated content or not. And vice versa: though it is often the case that implied content is context dependent, this is not necessarily so; there are cases in which the content implied is not particularly context- sensitive.

And a bit more:

Abstractly, the idea is this: one might think that just as we draw conclusions about the maxims that apply to an ordinary conversation from the basic cooperative objective of ordinary conversations, we should be able to draw some conclusions about the maxims that would apply to legislative speeches from the nature and objective of such communicative interactions. As we noted earlier, the Gricean maxims of conversation are normative instantiations of the general purpose of a conversation seen as a cooperative exchange of information. Legislation is a different kind of conversation. Can we not simply observe the main objectives of such conversation and then draw some conclusions about the relevant conversational maxims that would instantiate those objectives? Perhaps we can think about it in a way which is very similar to a competitive game. The purpose of competitive games is not the cooperative exchange of information; games manifest certain forms of strategic behavior. However, the rules of the game typically determine what counts as the point of the game, what kind of skills and abilities one would need to exhibit in order to play the game and play it successfully.27 Typically we can draw some conclusions from the purpose of the game about different forms of conduct in it that would be deemed permissible, and others, which would not be permissible. Consider chess, for example. Since it is an intellectual kind of competition, we should be able to conclude that chess players are not allowed to use physical intimidation as part of their tactics in the game.28 In other games, however, such as boxing, and perhaps even football, physical intimidation might be perfectly acceptable. In other words, we can draw some normative conclusions about the kind of moves players should be allowed to make, simply from the nature of the game and its general purposes. Can we extend this analogy to legislation, and try to deduce some maxims of conversation that would basically instantiate our conception of what kind of “game” legislation is, so to speak?

This is the best work I've seen on this important topic, and it is highly recommended.

Book Announcement: Expounding the Constitution, Edited by Huscroft

Grant Huscroft (University of Western Ontario - Faculty of Law) has posted Expounding the Constitution: Essays in Constitutional Theory (EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY, Grant Huscroft, ed., New York: Cambridge University Press, 2008) on SSRN. Here is the abstract:

Constitutional interpretation is a serious matter in any political community committed to the rule of law. Widespread disagreement about the most fundamental moral issues is to be expected, and it is bound to play itself out in the interpretation of legal rights. The essays that make up this volume - contributed by some of the most accomplished legal philosophers and constitutional law scholars in the common law world - address three pressing issues in contemporary constitutional interpretation and constitutional theory: (1) the role of moral reasoning in constitutional interpretation; (2) the legitimacy and justification of judicial review; and (3) the place of unwritten constitutional principles in the constitutional order. Although these papers reflect the jurisdictional roots of their authors, they are theoretical works of wide application rather than doctrinal accounts of the workings of the constitution of any particular jurisdiction.

Contents

Part I Morality and the Enterprise of Interpretation
1. Steven D. Smith, "What Does Constitutional Interpretation Interpret?"
2. Jeremy Waldron, "Do Judges Reason Morally?"
3. W.J. Waluchow, "Constitutional Morality and Bills of Rights"
4. Bradley W. Miller, "Justification and Rights Limitations"

Part II Judicial Review, Legitimacy, and Justification
5. Larry Alexander, "Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues"
6. David Dyzenhaus, "The Incoherence of Constitutional Positivism"
7. James Allan, "The Travails of Justice Waldron"
8. Aileen Kavanagh, "Deference or Defiance?: The Limits of the Judicial Role in Constitutional Adjudication"

Part III Written and Unwritten Constitutional Principles
9. T.R.S. Allan, "Constitutional Justice and the Concept of Law"
10. Mark D. Walters, "Written Constitutions and Unwritten Constitutionalism"
11. Jeffrey Goldsworthy, "Unwritten Constitutional Principles"

And from the Introduction:

Dyzenhaus then turns his sights on Jeffrey Goldsworthy, who has argued in favour of a moderate form of originalism. According to Dyzenhaus, no term in a constitution – not even a boilerplate term like “peace, order, and good government” in the Australian Constitution – cannot be given a new meaning by courts in the right circumstances. A judge could invoke the term “good government,” he argues, to limit the power of the Australian Parliament if it were to attempt to change the system of government by installing a dictatorship.

Judges committed to constitutional positivism are, on Dyzenhaus’s account, attempting to do the impossible. They are committed to recognizing a legislative monopoly on law-making, but they are operating in a common-law legal order. The best they can do is to attempt to curb judicial activism, which Dyzenhaus defines as the propensity of judges to affirm their interpretation of a bill of rights over the legislature’s. Even here, however, they are unlikely to be successful. Indeed, to the extent that judges discover inconsistency between legislation and their understanding of a bill of rights, they will, themselves, be activists.

The problem, in short, is that constitutional positivists have been overtaken by events. As Dyzenhaus puts it, “their understanding of their obligation of fidelity to law is inconsistent with many of the pieces of constitutional furniture in place.” In effect, he challenges them to acknowledge the need for the extensive legal reform he says is necessary to make their views tenable.

Horwitz on Posner & Powell on Judging

Paul Horwitz (University of Alabama School of Law) has posted Review - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner on SSRN. Here is the abstract:

This is a short review of two new books on judging - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner. Although both books examine the same topic, and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law, their approaches diverge significantly. Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case. Posner brings his economist's toolkit, supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism, to many of the same questions. Their goals are somewhat different, and their conclusions, despite some common ties, present a striking contrast. These books may be read as complementary and not just competitive accounts. Nevertheless, I suggest that Posner's account is far more descriptively accurate, although Powell leads us, commendably, to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account.

And from the paper:

Despite their wildly divergent paths, though, Posner and Powell in fact share many common ties. Both, for example, share interesting and important views on how we might reform legal education – in Powell’s case, to focus more on “how constitutional questions can be resolved with integrity and their resolution expressed with clarity,” and in Posner’s to master conventional legal skills and then move beyond them and focus on the actual underpinnings of judicial decision. And although Posner might reject Powell’s approach as tending towards the “moral vanguardism” of a Justice Kennedy, he repeatedly emphasizes that some of the most important constraints on the judicial task are, “first, the desire for self-respect and for respect from other judges and legal professionals generally, which a judge earns by being a good judge, and, second (and closely related), the intrinsic satisfactions of judging, which usually are greater for a good judge than for a bad one.” So even a Posnerian judge may have recourse to the kinds of quasi-moral constitutional “virtues” that are at the heart of Powell’s work.

And a bit more:

Too much is missing from Powell’s account. Nowhere in his book do we find a serious accounting for the many real-world factors in which judicial decision making takes place: the role of law clerks as canned reasoners for judges who perforce need do little reasoning of their own; the extent to which judging is a social and collegial process rather than the purely solitary and deliberative act of a cloistered monk in a cell; the host of human motivations and limitations that drive and hem in a judge and make unlikely any effort to set down a reliable instruction manual for any would-be judicial Hercules; and any number of broader institutional factors that might add depth to his romantic view of the judiciary. His constant refrain that his picture of constitutional virtue must be true because “much of what we do and say and do in constitutional interpretation” would otherwise be meaningless, a “solemn mockery,” begs the question: What if it is? You cannot prove God’s existence by saying that life would be bleak if God did not exist; no more can Powell prove the necessity of his approach by arguing that it would be depressing to think otherwise. Posner writes that “for judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between their official job description and their actual job”; Powell’s apparent response is, then let us not acknowledge it. But that is not a proof; he is mixing his “is” and his “ought.”

Highly recommended.

Levy on Constitutions without Social Contracts

Jacob T. Levy (McGill University - Department of Political Science) has posted Not so Novus an Ordo: Constitutions without Social Contracts on SSRN. Here is the abstract:

Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity‘s structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified.

I argue in this article, however, that something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory.

Contractarian blinders lead us to look for greater individualism, greater social unity, and greater coherence of principles than can actually be expected of constitutions or constitutionalism. Real constitutional orders appropriate, incorporate, and channel the histories and divisions of the societies they govern. Treating them as if they are social contracts will flatten and distort them, making those engagements with the past or with social plurality appear anomalous and encouraging their minimization.

I aim to redirect some of our attention to non-contractarian constitutionalism, or non-contractarian strands within constitutionalism, both as intellectual inheritance and as lived practice. Non-contractarian elements persisted in constitutional theory across the apparent break of the late 1700s, even though these have to some degree been lost sight of more recently; and they have persisted and should persist in constitutional practice.

And from the paper:

The de facto solution, born in French Revolutionary thought but foreshadowed in Locke and Rousseau, is that precisely one social fact from before the enactment of a contractarian constitution survives the founding moment and retains normative and juristic significance: the fact that these persons in this territory make up a political people because they are a nation.46 The counterpart in Hart’s philosophy of law is that a legal system depends on some one pre-legal social fact: a rule of recognition.

The bootstrapping problem that one cannot give a contractarian justification for the boundaries of the contracting group or of the rule of recognition, and must rely on a pre-contractarian social fact, leaves it unclear why there should be only one such fact that survives. “We, the people” and “the principle of any sovereignty resides essentially in the Nation” may be founding words of the modern constitutional tradition, but they do not constitute arguments. There is no non-question-begging reason why constitutions must derive from and ground legitimacy in a national people with pre-constitutional unity, rather than a plurality of pre-constitutional groups or institutions working or evolving together.47 Rationalist contractarians have suggested that such pluralism runs afoul of the moral priority of individuals over groups. But this distinction is illusory; the unitary pre-constitutional national people is a reified group as much as any other would be.

There is an affinity here with Joseph Raz’s argument, contra Hart and Kelsen, that a legal system may contain a plurality of rules of recognition and a plurality of socially-recognized legal sources, that they need not all be reducible to a single Grundnorm. The affinity is not an identity. Neither Hart’s rule of recognition nor Kelsen’s Grundnorm is a social contract; both are certainly compatible with, say, a legislating monarch who rules because it is generally accepted that his or her family has always done so—subject perhaps to constitutional constraints that are themselves customary rather than enacted. But in modern democracy governed by a written constitution, we will typically be thinking of non-contractarian elements of an overall constitutional order, not of a wholly non-contractarian constitution. Since a constitutional order is juristic as well as political, non-contractarian constitutionalism in such a state might depend on Raz’s argument being correct. The reasons why an Indian tribe is a valid source of law in the American context and the reasons why Wyoming is may just be different reasons, not reducible to a single master rule of recognition.48

Highly recommended.

Legal Theory Lexicon: The Nature of Law

Introduction

What is the nature of law?  This question has occupired center stage jurisprudence and philosophy of law in the modern era, and has been the central occupation of contemporary analytic jurispurdence.  This entry in the Legal Theory Lexicon aims to give an overview of the "What is Law?" debate, with more specialized entries on specific aspects of the debate to follow over the next several weeks.

Historically, the answer to the question, "What is law?," is thought to have two competing answers.  The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice.  The modern answer is provided by legal positivisim, which, as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

Contemporary debates over the nature of law focus on a revised set of positions.  Legal positivism is represented by analytic legal positivists, like H.L.A. Hart, Joseph Raz, and Jules Coleman.  The natural law tradition is defended by John Finnis.  And a new positition, interpretivism is represented by Ronald Dworkin.

In some ways, the title of this Lexicon entry is misleading, because of our focus on the "What is law?" question as it has been approached by contemporary legal philosophers.  There are other important perspectives on the nature of law that focus on law's functions rather than the the meaning of the concept or the criteria of legal validity.  For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Luhmann.  These issues are discussed by Brian Tamanaha in the article cited in the Links section at the end of this entry.

This Lexicon entry maps the territory of the "What is Law?" controversy, and provides introductory sketches to the major positions.  As always, the Lexicon is written for law students, especially first-year law students, with an interest in legal theory.

Natural Law Theory

Natural law theory is strongly associated with classical and medieval thought, especially Aristotle, Roman jurisprudence, and St. Thomas Aquinas.  There are several challenges associated with the task of explicating natural law theory, and one of the most important tasks of this introductory entry is simply to identify these challenges.

First, there are two interrelated but distinct views that are called "natural law theory."  One is a view about the nature of morality: this view asserts that there are natural moral laws, and it is not essential to this view that it take any particular stand on the "What is law?" debate.  A second view that is called "natural law theory" is a theory about "law" as an institution or practice--that is the view that is implicated in the "What is law"" controversy.

Second, contemporary understandings of "natural law theory" have been strongly influenced by the legal positivists critique.  When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition.

For the purposes of this broad overview, we might use the latin phrase lex injusta est non lex as a starting point.  Natural law theory could be understood as affirming something like the following:

An unjust "law" is not a true law.

This formulation differs from a literal translation--an unjust law is not a law.  Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a law (but also is unjust) is not a law.  The quotaton marks around "law" and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a "law" is not in fact a law if it is unjust.  Usually, this notion is accompanied by some explication of the characteristics that are required for status as a "true law" or perhaps "valid law."

Legal Positivism

It is difficult to know where the positivist tradition begins.  Hobbes's theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin--both of whom are clearly in the positivist tradition.  Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham's student, John Austin, the author of The Province of Jurispudence Determined (1861).

Austin's theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment.  A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.

Austin's positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions.  But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth.  This difficulty is most acute with respect to rules that define the basic institutional arrangements that define the sovereign itself, e.g., the rules of constitutional law in the United States.

These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism.  One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules).  Hart replaced the notion of a sovereign with that of a rule of recognition--a social rule that specifies what counts as a law and what does not.

Moral Facts, Social Facts, and Legal Content

The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called "analytic jurisprudence."  Beginning with the work of H.L.A. Hart in the 1950s, through is publication of The Concept of Law in 1961, and extending through Ronald Dworkin's critique of Hart, and the reformulation of the positivist tradition by both Joseph Raz and Jules Coleman, the basic issues and questions have gone through several transformations.

One useful way to get get at the heart of these developments is to conceive of the debate about the nature of law as centrally concerned with the relationship between social facts, moral facts, and legal content.  Our question is "What determines legal content?," where "legal content" is simply understood as the content of the legal norms.

One answer to this question takes the form: It is necessarily the case that only social facts determine legal content.  This is exclusive legal positivism--a view that is strongly associated with Joseph Raz.

A second answer to this question takes the form: It possibly the case that moral facts determine legal content, but only if social facts give the moral facts this role.  This is inclusive legal positivism--and this view is most strongly associated with Jules Coleman.

A third answer to the question takes the form: It is necessarily the case that moral facts determine legal content.  This view would include natural law theory and interpretivism--the view that is strongly associated with Ronald Dworkin.

By framing the "What is law?" debate in terms of the relationship between social facts, moral facts, and legal content, the conceptual space we get precise mapping of the conceptual space.  In the rest of this Lexicon entry, we will take a somewhat less shallow look at the three options.

Inclusive and Exclusive Legal Positivism

Exclusive legal positivism is the view that only social facts can determine legal content.  Joseph Raz famously argued for exclusive legal positivism based on the premise that law claims authority, that authority consists in displacing other reasons for actions, and therefore law must displace moral reasons for action.  (That was a very short and inadequate summary of a long and complex argument.)

Inclusive legal positivism is the view that moral facts can play a role in determining legal content, but only if there are some social facts that give the moral facts this role.  For example, a constitution might include an clause that make a moral conception of human equality a legal rule.  This would give the morality of equality a role in determining legal rights, but this role would exist because a social fact (the Constitution) made it so.

Interpretivism

The final view is "interpretivism," strongly associated with Ronald Dworkin.  For Dworkin, social facts, such as constitutons, statutes, and court decisions, do not directly determine legal content.  Instead, Dworkin believes that the content of the law is given by the theory that best fits and justifies the legal materials.  Dworkin makes this theory vivid by imagining a judge, Hercules, who is able to construct a grand theory of political morality that provides a constructive interpretation of the entire institutional history of a given society.  Because this theory is a theory of that institutional history, it is constrained.  For example, the best constructive interpretation of the institutional history of the United States will have to acknowledge that our federal legislature is bicameral and that it includes a Senate with equal reprsentation of each state.  But this constraint does not require a perfect match between a literal interpretation of every legal text and the content of the law.  So some precedents may be categorized as mistakes, and some statutory or constituitonal provisions may be given a constructive interpretation that makes them morally more attractive but does not follow every jot and tittle of the text.

Conclusion

This very brief introduction to the "What is law?" debate is necessarily incomplete and shallow.  But I hope that it gives you a general sense of the various positions that have been taken on the nature of law.

Bibliography

John Austin, The Province of Jurisprudence Determined (1861).

Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2001).

Ronald Dworkin, Law's Empire (1986).

John Finnis, Natural Law and Natural Rights (1980).

H.L.A. Hart, The Concept of Law (1961) (2d ed. 1984).

Joseph Raz, The Authority of Law: Essays on Law and Morality (1983).

Links

John Finnis, Natural Law Theories, Stanford Encyclopedia of Philosophy.

Leslie Green, Legal Obligation and Authority, Stanford Encyclopedia of Philosophy

Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy.

Andrei Marmour, The Nature of Law, Stanford Encyclopedia of Philosophy.

Nicos Stavropoulos, Interpretivist Theories of Law, Stanford Encyclopedia of Law.

Brian Tamanaha, Law, Oxford International Encyclopedia of Legal History, 2008.

Related Legal Theory Lexicon Entries

Legal Theory Lexicon 032: Fit and Justification

Legal Theory Lexicon 038: The Internal Point of View

Legal Theory Lexicon 039: Primary and Secondary Rules

Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Future of the Internet--And How to Stop It by Jonathan Zittrain. Here is a description:

This extraordinary book explains the engine that has catapulted the Internet from backwater to ubiquity—and reveals that it is sputtering precisely because of its runaway success. With the unwitting help of its users, the generative Internet is on a path to a lockdown, ending its cycle of innovation—and facilitating unsettling new kinds of control.

IPods, iPhones, Xboxes, and TiVos represent the first wave of Internet-centered products that can’t be easily modified by anyone except their vendors or selected partners. These “tethered appliances” have already been used in remarkable but little-known ways: car GPS systems have been reconfigured at the demand of law enforcement to eavesdrop on the occupants at all times, and digital video recorders have been ordered to self-destruct thanks to a lawsuit against the manufacturer thousands of miles away. New Web 2.0 platforms like Google mash-ups and Facebook are rightly touted—but their applications can be similarly monitored and eliminated from a central source. As tethered appliances and applications eclipse the PC, the very nature of the Internet—its “generativity,” or innovative character—is at risk.

The Internet’s current trajectory is one of lost opportunity. Its salvation, Zittrain argues, lies in the hands of its millions of users. Drawing on generative technologies like Wikipedia that have so far survived their own successes, this book shows how to develop new technologies and social structures that allow users to work creatively and collaboratively, participate in solutions, and become true “netizens.”

And from the reviews:

Lawrence Lessig : "This book is fundamental. It will define the debate about the future of the Internet, long after we haven''t stopped it. Absolutely required reading."-Lawrence Lessig, Professor, Stanford Law School, and author of Free Culture and The Future of Ideas

Dr. Klaus Schwab : "This remarkably researched and highly entertaining book is a must-read for all who take the ubiquitous nature of the Internet in our everyday lives for granted. The future of the internet is NOT a positive one, unless we all work collaboratively to ensure its lasting success. Zittrain's analysis is first-class and should be widely heeded by leaders from all sectors of society."-Dr. Klaus Schwab, Executive Chairman and Founder of the World Economic Forum

Laurence H. Tribe : "The most compelling book ever written on why a transformative technology''s trajectory threatens to stifle that technology''s greatest promise for society. Zittrain offers convincing road maps for redeeming that promise."-Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School

Jimbo Wales : "Jonathan Zittrain does what no one has before-he eloquently and subtly pinpoints the magic that makes Wikipedia, and the Internet as a whole, work. The best way to save the Internet is to turn off your laptop until you''ve read this book."-Jimbo Wales, Founder, Wikipedia

Cass Sunstein : "A superb and alarming discussion, from one of the most astute and forward-looking analysts of the Internet. Zittrain explains how the glorious promise of the Internet might not be realized-and points the way toward reducing the current risks. Absolutely essential reading."-Cass Sunstein, Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, The University of Chicago Law School, and co-author of Nudge: Improving Decisions About Health, Wealth, and Happiness

I've already used this book in a project on Internet Governance.  Highly recommended!

Download of the Week

The Download of the Week is Salience Reasoning by Gerald J. Postema.  Here is the abstract:

The thesis of this essay is that social conventions of the kind Lewis modeled are generated and maintained by a form of practical reasoning which is essentially common. This thesis is defended indirectly by arguing for an interpretation of the role of salience in Lewis's account of conventions. The remarkable ability of people to identify salient options and appreciate their practical significance in contexts of social interaction, it is argued, is best explained in terms of their exercise of what I call "salience reasoning," a form of common practical reasoning. The more widely accepted understanding of salience competence, the "natural salience" understanding, fails as an interpretation of the notion at work in Lewis and Schelling (on whom Lewis relied) and is inadequate as an explanation of salience competence.

And from the paper:

salience detection does not depend merely on observation; it depends on reasoning. Salience reasoning is not only reasoning from salience detected, but also reasoning to that which is salient. It is reasoning that works out what is salient and its practical significance or force. The natural salience hypothesis treats salience detection as a matter of reasoning, as well, but it limits the repertoire of salience reasoners to inductive reasoning. It is blind to the imaginative and creative dimension of reasoning, which Schelling thought were important components of salience competency. This dimension involves techniques fundamental to all forms of reasoning: distinguishing figure from ground, filtering out distractions, identifying patterns, fitting clues together into a coherent whole. We might broadly characterize this as “analogical thinking.” Analogical thinking is not always explicit or discursive, but it is capable of being disciplined and rational.

Highly recommended.  Download it while its hot!

Kaye on Tort Theory

Timothy S. Kaye (Stetson University College of Law) has posted Rights Gone Wrong: The Failure of Fundamentalist Tort Theory on SSRN.  Here is the abstract:

This article challenges the notion that tort law must be explained and justified either by reference to economics or by appeals to a particular conception of rights or justice. Section I suggests that, far from aiding an explanation or evaluation of the law of torts, such statements of tort law theory are becoming more like affirmations of fundamentalist religion, where theorists flaunt their piety by providing an ever purer statement of the faith. But, rather than challenge the values which underlie these approaches, this article takes the claims which each school of thought and subjects them to an analysis according to their own statements of faith.

Section II of this article treats a recent book by English law professor Robert Stevens as a case study in the flaws of fundamentalism. Among those flaws is a tendency to re-engineer the case law to make the theory fit. This re-engineering often has implications which are then overlooked and which are actually the very opposite of what was intended. Stevens sees individual rights as the foundation of tort law. Yet his analysis actually turns out to have the perverse effect of downgrading individual rights to such an extent that his rights model turns out not to protect individual rights at all but to legitimize their destruction.

Section III attempts to see whether Stevens's analysis can be rescued at any level. Using a methodology originally developed by the German political philosopher and sociologist, Max Weber, it argues that the best way to understand Stevens's analysis is actually as a purely theoretical construct or `ideal-type' which facilitates both comparison with other explanations and the identification of trends in tort law. Taken this way, however, it becomes clear that the law of torts is actually moving away from anything resembling Stevens's model.

Section IV offers an equivalent critique of the fundamentalism of economic analysis, which worships at the altar of economic efficiency. It also fails entirely to address differences between jurisdictions, such as those which still recognize joint and several liability as compared to those where that doctrine has been abolished. Moreover, it is shown that the re-engineering of legal doctrine here depends on a confusion of micro- and macro-economics. Ironically, this re-engineering has the perverse effect of promoting a view which is the very opposite of Adam Smith's `invisible hand'. As a result, the theory has more in common with the views of early Soviet legal theorists than with what could reasonably be expected of advocates of a free market.

Section V opens by acknowledging the importance of economic factors and of ideas of rights or justice, but rejects the adoption of a simple compromise between the two theoretical schools as hopelessly compromised. It emphasizes that it is the form of law which is is the law's distinguishing characteristic, and which creates for itself a degree of autonomy. It argues that it is the interplay of the form of law with external factors such as economics and ideas of rights which drives changes in the law of torts. The section concludes by advocating a new approach to tort law theory, which takes in these two dimensions - plus a third dimension of time - and which pushes the need to explain trends in tort law to the top of the scholarly agenda.

Andersen on the United Effort Plan Trust Litigation

Eric G. Andersen (University of Iowa - College of Law) has posted Protecting Religious Liberty Through the Establishment Clause: The Case of the United Effort Plan Trust Litigation (Utah Law Review, September 2008) on SSRN. Here is the abstract:

The Fundamentalist Church of Jesus Christ of Latter Day Saints is best known for its open practice of polygamy, long abandoned by the church from which it broke away generations ago. Less notorious is its communitarian economic program involving the centralized ownership and management of the real estate assets of the church and its members. Their houses, farms, and businesses, located in a remote community straddling the Utah-Arizona border, are owned by the United Effort Plan Trust, a public charitable trust. The terms of the trust have obligated the trustees to administer its assets in accordance with religious principles. The Trustees have historically been leaders of the church.

In 2005 the Utah Attorney General alleged that the trustees were committing serious breaches of their fiduciary duty, putting its assets at risk. In response to the Attorney General's petition, a state trial court placed control of the trust in the hands of a "special fiduciary." The court then reformed the trust extensively, converting it into an essentially secular instrument. For example, trustees selected and controlled by the church president are to be replaced with a board approved by the court. They are to accept only non-binding advice from ecclesiastical leaders. The "needs and just wants" of beneficiaries are no longer to be gauged by religious purpose and the mandates of scripture, but by the new trustees' assessment of their need for adequate housing and education. The changes wrought by the court impose deeply upon the religious character of the trust.

The reformation of the trust raises challenging issues under the religion clauses of the First Amendment. The reformation may pass muster under the Free Exercise Clause, but the court did trespass the bounds of the Establishment Clause, which constrains the state from intruding into the functioning of a religious community.

Hathaway on the New Haven School of International Law

Oona A. Hathaway (Yale University - Law School) has posted The Continuing Influence of the New Haven School (Yale Journal of International Law, Vol. 32, No. 2, 2007) on SSRN. Here is the abstract:

This Commentary examines the deep and abiding influence of what has been called the New Haven School of international law. It considers the connection between the past and the present¿the ideas first formulated by Myres S. McDougal and Harold D. Lasswell more than a half-century ago, and those, both near and far, whose work they have influenced.

Hylton on the Law & Economics of Monopolization Standards

Keith N. Hylton (Boston University - School of Law) has posted The Law and Economics of Monopolization Standards (Antitrust Law and Economics, 2009) on SSRN. Here is the abstract:

This chapter provides a survey of the law and literature on monopolization. The focus is American law, but the issues considered are equally applicable to European law. After briefly reviewing the history of monopolization law in the U.S., I review various approaches to the legal standard for monopolization suggested in the literature. I then attempt to model monopolization standards, and assess their desirability in light of error costs.

Sebok on Nagareda on Mass Torts

Anthony J. Sebok (Yeshiva University - Benjamin N. Cardozo School of Law) has posted What Do We Talk About When We Talk About Mass Torts? (Michigan Law Review, Vol. 106, p. 1213, 2008) on SSRN. Here is the abstract:

This is a review of Richard Nagareda's Mass Torts in a World of Settlement (Univ. Chicago Press, 2007). Nagareda's book argues that mass litigation has fundamentally altered the way that the liability system handles claims for compensation, restitution and punishment, and that out rules of civil procedure and legal ethics must change accordingly.

In this review, I praise Nagareda's synthetic and sweeping account of mass tort litigation over the past 25 years, in which he weaves together an account of the settlements arising from asbestos, tobacco, breast implant, Fen-phen and other mass torts. I positively evaluate the reform proposed at the end of the book, which I call the "Leveraging Proposal." It would require lawyers to place into escrow the fees they receive from clients whose cases they settle early in a mass tort, and the court would be permitted to garnish a portion of those fees if similarly situated plaintiffs receive less in future settlements.

My main critique of the book is that the Leveraging Proposal addresses only part of the challenge of mass torts to the contemporary legal system. It deals with the problem identified by the Supreme Court in Amchem and Ortiz. I argue that there are other, equally serious problems raised by mass torts that the Leveraging Proposal does not address, and this limits the value of the book.

Kaswan on Domestic Responses to Climate Control

Alice Kaswan (University of San Francisco - School of Law) has posted The Domestic Response to Global Climate Change: What Role for Federal, State, and Litigation Initiatives? (University of San Francisco Law Review, Vol. 42, No. 1, 2007) on SSRN. Here is the abstract:

Although the United States is not a party to the Kyoto Protocol, a multitude of alternative domestic approaches to combat climate change have emerged at all levels of government. The article takes as given that climate change is a serious environmental problem that requires a legal response. Building on conference presentations at a USF symposium in March 2007, this article evaluates the most significant existing federal and state measures, including federal voluntary measures, California's vehicle emissions standards and global warming legislation, and the Regional Greenhouse Gas Initiative. The article also addresses three litigation initiatives: Massachusetts v. EPA, Friends of the Earth v. Mosbacher, and the states' public nuisance actions against electric utilities and auto manufacturers.

The article not only highlights the key features of federal, state, and litigation initiatives; it also addresses their respective roles. In responding to climate change, the nation must confront profound institutional questions about the relationship between federal and state regulation, as well as the relationship between democratic processes and the courts. In the article, I conclude that each of our legal institutions, including the federal government, the states, and the courts, has a role to play. Letting them play their respective roles increases the likelihood that our legal institutions will respond effectively to the fundamental challenge posed by global climate change.

Reply to Griffin: Downloadable Version & Guide to the Posts

I have creaed a downloadable version of my series of posts replying to Stephen Griffin's helpful and illuminating comments on Semantic Originalism.  This downloadable version adds a Reader's Guide with a short summary of the argument of Semantic Originalism to the nine part series of replies.  The download adds light footnoting and citations as well.  Here is the link:

A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin

And if you prefer the online versions, here are the links:

Reply to Griffin, Part One: Background, Context, and Constitutional Holism--the clause meaning thesis is not "clause bound interpretivism," the meaning of each clause is determined by the publicly available context, including the meaning of the whole Constitution.

Reply to Griffin, Part Two: Constitutional Amendments--Determination of the relationship of constitutional amendments to the main text and to each other may involve constitutional implicature or harmonizing constructions.

Reply to Griffin, Part Three: Going Beyond the Text--Likewise, general constitutional principles like "separation of powers" may be intermediate steps in the construction of vague provisions, such as "executive power," "legislative power," and so forth.

Reply to Griffin, Part Four: Constitutional Disagreement--There can be disagreement about the semantic content of the Constitution, including the question whether a particular provision is vague, but such disagreements can usually be resolved by the linguistic facts.

Reply to Griffin, Part Five: Concepts and Kinds--This post addresses the concept-conception distinction invoked by Ronald Dworkin, and the notion of a natural kind associated with Saul Kripke.

Reply to Griffin, Part Six: Interpretive Pluralism --This post distinguishes several different ideas that might be called "interpretive pluralism" and demonstrates the plausible versions are consistent with the claims of "Semantic Originalism."

Reply to Griffin, Part Seven: The Relationship of the Constituitonal Text and Constitutional Law--The contribution thesis claims that conventional practice establishes that the semantic content of the Constitution provides rules of constitutional law.  This post establishes criteria by which this claim can be assessed and shows that these criteria are met.

Reply to Griffin, Part Eight: The New Deal and Living Constitutionalism--The idea of living constitutionalism emerged during the Warren Court era.  The most plausible version of living constitutionalism (which does not deny that the Constitution has hard core of fixed semantic content) is compatible with semantic originalism.

Reply to Griffin, Part Nine: The Three Dimensional Space of Constitutonal Theory--There are three distinct dimensions of argument in constitutional theory, semantic, legal, and moral: the three dimensions need to be kept distinct if conceptual confusion is to be avoided.

Minow on Tribe on Constitutional Change

Martha Minow (Harvard Law School) has posted The Government Can't, May, or Must Fund Religious Schools: Three Riddles of Constitutional Change for Laurence Tribe (Tulsa Law Review, Vol. 42, No. 4, 2008) on SSRN. Here is the abstract:

Three linked puzzles arise with the constitutionality of public funding private schools - where the funding scheme excludes religious schools: how can the demands of both the Establishment and Free Exercise clause be satisfied; what does respecting precedent mean when there is a recent reversal of one line of cases, and when does federalism demand deference to the supremacy of the federal constitution or instead respect for state autonomy? The puzzling conjunction of the free exercise and establishment could lead government actors has led the Supreme Court to call for "play-in-the-joints," allowing some distance between government aid and religious institutions even at if it limits the free exercise of some individuals who at the margin may choose a non-religious path in order to get the public subsidy. The second puzzle - how to respect precedent when a recent new precedent overturns an older one - suggests some respect people's reliance on surrounding precedents, here governing the pre-existing relationship between religion and government. The third puzzle, federalism's Janus-faced tribute to state autonomy, requires federal supremacy but should permit the variety that decentralization enables. Given these puzzles, consideration of policy effects is justified; it is relevant to consider how mandating public funding of vouchers and tax credits redeemable at parochial schools as part of any public educational aid would likely lead many more families to opt for private religious schools, schools - and would alter the character of schooling and socialization in America. Taken together, stare decisis and the religion clauses suggest that federal courts now should leave room for state experimentation and variety rather than a uniform national solution on the issue of compelled public aid to religious schools. This approach is informed by Professor Tribe's approach to constitutional doctrine not a straight-jacket but instead a tool for addressing complex difficulties in light of past resolutions of analogous difficulties as well as past and enduring normative commitments.

Foy & Griffin on Antidiscrimination Law & Selective Abortion

Dov Fox and Christopher L. Griffin Jr. (Yale Law School and Yale Law School) have posted The Collateral Effects of Law on Social Behavior: The Case of Antidiscrimination Law and Selective Abortion on SSRN.  Here is the abstract:

This Article explores the powerful ways in which changes in the law can bring about unexpected changes in social behavior that is unrelated to that which the law regulates. We puzzle through this unexamined phenomenon by considering the relation between a major antidiscrimination law, the Americans with Disabilities Act (ADA), and a routine reproductive practice, selective abortion on the basis of Down syndrome. Our empirical analysis of U.S. natality data suggests that the ADA has the surprising effect of preventing the existence of the very class of people the law was intended to protect. We explain this paradox by showing how the ADA's implementation mechanism generates stigmatizing attitudes toward people with disabilities. The law's requirement that those seeking its protection prove the limitations caused by their disability does damage to our understandings and expectations about what it means to be disabled. Using formal regression analysis, we find suggestive evidence that the ADA significantly increased the incidence of decisions to terminate a pregnancy following a positive test for Down syndrome. We discuss the implications of this "expressive externality" for disability, family, and reproduction law in the United States.

There was some glitch with SSRN & I was unable to download the paper.  I was interested in how the authors treat the notoriously difficult possible persons problem.  Hopefully this will become available soon.

Spottswood on Insincerity & Freedom of Expression

Mark Spottswood (U.S. District Court for the Northern District of Illinois) has posted Falsity, Insincerity, and the Freedom of Expression (William & Mary Bill of Rights Journal, Vol. 16, No. 4, 2008) on SSRN. Here is the abstract:

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong.

False statements often have value in themselves, and we should protect them even in some situations where we are not concerned with chilling truthful speech. When false statements are spoken sincerely, they are a useful and necessary part of argumentation, which is a powerful means of increasing human knowledge. When confronted with honest errors, proponents of competing beliefs have a natural impulse to contest them; in so doing, they unearth and disseminate facts that deepen the understanding of both speakers and listeners. False speech, therefore, is valuable because it is an essential part of a larger system that works to increase society's knowledge.

The benefits of false speech evaporate, however, when we move from honest errors to deliberate lies. Insincere speech tends to corrode, rather than further, argument. It is associated with a number of practices that deprive argument of its knowledge-promoting features. We may sometimes wish to protect insincere speech to avoid chilling truthful speech, but we should always do so cautiously.

After providing a summary of the existing law and scholarship concerning false speech, this Article analyzes the harms and benefits of false, insincere, and misleading speech. This question will be approached from the perspective of social veritistic epistemology, which will permit a detailed assessment of the consequences of various types of deceptive speech for the state of societal knowledge. I will conclude by suggesting some ways in which existing First Amendment doctrine could be reformed in order to better account for the constitutional value of false speech. Ultimately, it is insincerity, not falsity, which has no essential part of any exposition of ideas, and is of slight social value as a step to truth. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

Recommended!

Bezanson on Art & the Constitution

Randall P. Bezanson (University of Iowa College of Law) has posted Art and the Constitution (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

Art and the Constitution addresses a longstanding problem in free speech theory: the status of art as expression protected by the First Amendment. The article, drawn from Professor Bezanson's forthcoming book, Art and the First Amendment (U. Ill. Press 2008-09), suggests that art should be broken down into two separate forms, propositional art and non-propositional art, with propositional art to be protected under the traditional speech paradigm and non-propositional art to be protected under an altogether different paradigm that results in art enjoying a distinct and greater degree of freedom under the First Amendment.

I enjoyed the very interesting discusson of art and the freedom of speech.  I wonder what Bezanson would think of the standard New Originalist reply to the argument that the "freedom of speech" does not encompass nonverbal artistic expression.  The Ninth Amendment specifically forbids judges and other officials from construing the enumeration of the right to freedom of speech as denying or disparaging other rights retained by the people.  It doesn't take a very fancy theory of retained rights to conclude that if both speech and art are protected then artistic expression is a retained right.  (I will leave the argument to the reader.)  Of course, the Ninth Amendment only makes it clear that federal power does not extend to abridgements of the right of artistic expression.  The application of the right to state governments would require consideraton of the "privileges or immunities" clause of the 14th amendment.  This phrase is enigmatic given the contemporary meaning of "privileges" and "immunities," but there is good evidence that the division of linguistic labor in the reconstruction era would lead us to specialist usage and Justice Bushrod Washington's opinion in Corfield by Coryell and beyond that to Blackstone's discussion of privileges and immunities:

Thus much for the declaration of our rights and liberties. The rights themselves thus defined by [Magna Carta and other foundational] statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.declaration of our rights and liberties. The rights themselves thus defined by [Magna Carta and other foundational] statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.

William Blackstone, Commentaries on the Laws of England *125 (W.S. Hein & Co. reprint 1992) (1768).

If you are interested in art law, read Bezanson.

Kraus on Precedent in Contract Law

Jody S. Kraus (Virginia) has posted From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory on SSRN. Here's the abstract:

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In contrast, I argue that the classical theorists implicitly presuppose that the precedential authority of cases consists in the best theory that explains their outcomes, even if that theory is inconsistent with the case's express judicial reasoning. The classical view of precedential authority completely defuses Gilmore's charge of fraud. In Gilmore's view, merely demonstrating the inconsistency between the proposition for which the classical theorists cited a case and the express reasoning in that case suffices as proof of misrepresentation. But in the classical theorists' view, the express reasoning in a case is simply a theory of its precedential authority, which, like any theory, can be wrong. Thus, the classical theorists simply reject Gilmore's claim that a case cannot properly be cited for a proposition inconsistent with its express reasoning. The real dispute, then, between Gilmore and the classical theorists is over the nature of precedential authority and not the content of contract law.

Having reframed the classic death-of-contract debate, I then trace these competing conceptions of precedential authority through the major schools of contemporary contract theory. I argue that a contract theory's embrace of one view instead of the other can be explained by the relative priority it accords to each of the two components in a conception of adjudicative legitimacy. A conception of adjudicative legitimacy consists in a theory of what it means for a decision to be based on law and a theory of what is required for law to be justified. I explain why theories according priority to the former tend to subscribe to the precedents-as-outcomes view, while theories according priority to the latter tend to favor the express reasoning view. The Essay concludes by arguing that the economic analysis of contract law subscribes to the precedents-as-outcomes view and therefore is the contemporary jurisprudential successor to the late nineteenth-century classical theorists.

I find myself in complete agreement with Kraus.  This article is a must for those interested in contract or the theory of precedent or the current debates over scholarship about 19th century legal thought.

Highly recommended.  Download it while its hot!

Sarat & Clarke on Prosecutorial Discretion

Austin Sarat & Clonor Clarke's Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law is online and available in Law & Social Inquiry. Here is the abstract:

Today it is widely recognized in both academic literature and the mainstream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality.

By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.

Book Announcement: Democracy Incorporated by Wolin

Democracy Incorporated Managed Democracy and the Specter of Inverted Totalitarianism Sheldon S. Wolin To read the entire book description or a sample chapter, please visit: http://press.princeton.edu/titles/8606.html Democracy is struggling in America--by now this statement is almost cliché. But what if the country is no longer a democracy at all? In Democracy Incorporated, Sheldon Wolin considers the unthinkable: has America unwittingly morphed into a new and strange kind of political hybrid, one where economic and state powers are conjoined and virtually unbridled? Can the nation check its descent into what the author terms "inverted totalitarianism"?

Cloth  | $29.95 / £17.95 | ISBN: 978-0-691-13566-3

Book Announcement: Paperback of Barak's The Judge in a Democracy

The Judge in a Democracy Aharon Barak To read the entire book description or a sample chapter, please visit: http://press.princeton.edu/titles/8145.html Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. "Aharon Barak [states] that it is precisely because judges are not politicians that they are the right people to undertake the constitutional role of ensuring that the legislature and the executive comply with legal requirements. . . . Barak points out that tension between the courts and other branches of government is natural and it is desirable. If the courts' decisions were always welcomed by the executive, judges would not be doing their job properly. Barak's thesis is . . . of fundamental importance."--David Pannick, Times of London

Paper | $22.95 / £13.50 | ISBN: 978-0-691-13615-8 Cloth  | $29.95 / £17.95 | ISBN: 978-0-691-12017-1

Belle on the Things Academics Want

Not the same things as everydoby else!

Read Belle first & if you are grading, you can waste even more time by reading the continuation to this post.

Reply to Griffin, Part Nine: The Three Dimensional Space of Constitutonal Theory

This is the Ninth and final post in my series replying to Stephen Griffin's thoughtful and illuminating comments about Semantic Originalism on Balkinization.  In this post, I will summarize the series and make some remarks about what I have tried to accomplish in "Semantic Originalism."

"Semantic Originalism" is organized around four claims or theses:

(1) the fixation thesis--the claim tha the semantic meaning of the constitution is fixed at the moment of constitutional utterance: the phrase "domestic violence" continues to mean something like "riot, rebellion, or insurrection" even though it has now acquired a new meaning, "spouse abuse."

(2) the clause-meaning thesis--the claim that the semantic content of the constitution is determined by the original public meaning of the words and phrases and the rules of syntax at the time the constitution was framed and ratified.  Clause meaning is modified in four ways: (a) by the publicly available context of utterance, (b) by "terms of art" as specified by the division of linguistic labor, (c) constitutional implicature, the necessary implications of the text, and (d) constitutional stipulations, the newly created phrases such as "House of Representatives," the meaning of which is stipulated by the Constitution itself.

(3) the contribution thesis--the claim that the semantic content of the text contributes rules of constitutiona