Legal Theory Blog

Legal Theory Lexicon: Causation

Introduction 

Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc.), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the death of the pedestrian but did not cause Barak Obama to win the Iowa caucuses in 2008. In these cases, various notions of causality converge. The person on the street, the scientist, and lawyer can all agree in such cases that for all practical purposes X caused Y but not Z. But sometimes the various notions of cause come apart exposing ambiguities and vagueness in both ordinary and legal talk about causes and effects. This post provides a very basic introduction to causation for law students (especially first-year law students) with an interest in legal theory.

Cause-in-Fact & Legal Cause

Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks!

Cause-in-Fact 

What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of thisLexicon post is to provide a set of tools that for understanding the troubles that overreliance onbut-for causation can cause.

Necessary and Sufficient Causes

The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause."

X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart.

This rough ready distinction between necessary and sufficient causes really won't do all the necessary work.  For example, Alice's shooting Ben through the heart is not truly sufficient, by itself, no matter what other conditions obtain, to cause Ben's death.  If Ben had been on an operating table awaiting a heart transplant, then he might have lived despite the slot.  One suggestion for dealing with cases like this is to identify "sufficient causes" as a "necessary element of a sufficient set."  Things get even more complex from for the purposes of this introduction the point is simply to see the indadequacy of "necessary and sufficient cause" as a tool for dealing with complex cases in a precise way.

The Role of Counterfactuals

The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts.What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim.

What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation.

Overdetermination

Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea ofoverdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben.

Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause.

The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation.

Coincidence

Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what?  Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences.

Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident.

Alternatives to But-For Cause-in-Fact

Although "but-for causation" is frequently presented as the only account of cause in law school classes, it is far from the only view.  The alternatives to but-for causation frequently view causal relationships as involving more than but-for cause.  In fact, some theories of causation sharply distinguish but-for relationships from true causation.  The best way to learn about these alternatives to read the references cited below: the Stanford Encyclopedia of Philosophy articles provide a good starting point.

Legal Cause

What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause.

First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law.

Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable.

Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away.

Probability

Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post.

Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y.

Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events.

Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:

--The letter “p” is frequently used to represent probability. Most law students encounter this notation in Justice Hand’s famous opinion in the Carroll Towing case (B < PL or “burden less than loss discounted by probability). The notation p(x) = 0.1 can be read “the probability of x equals 1/10.” And the notation, p=0.5 can be read “probability equals one in two.”

--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1.

Types and Tokens

So far, we have been focusing mostly on cases where an individual instance of harm is caused by some particular wrongful action. But of course, we frequently think about causation as a more general relationship. For example, in science we might speak of “causal laws.” There is no standard terminology for this distinction: we might use the phrase “individual causation” and “systematic causation.” One helpful bit of terminology for getting at this idea is to differentiate “types” and “tokens.” Ben’s running the rend light at a particular time and location is an event token and it is a token of a type of events, i.e. the type “running a red light.”

Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation.

Conclusion

Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn.

Bibliography

H.L.A. Hart & Tony Honore, Causation in the Law (2d ed. 1985). For many years, this was thebook on causation and the law. Currently out of print, but used copies are available on Amazon.com.

Michael Moore, Causation and Responsibility (2009).  This is the best contemporary treatment, and a must read for legal theorists who want to know about causation.


Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley.

Links

Antony Honore, Causation in the Law, Stanford Encyclopedia of Philosophy

Peter Menzies, Counterfactual Theories of Causation, Stanford Encyclopedia of Philosophy

Jonathan Schaffer, The Metaphyiscs of Causation, Stanford Encyclopedia of Philosophy

Richard Wright, The NESS Account of Natural Causation: A Response to Criticisms, SSRN.

(This entry was last modified on February 26, 2012.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Tea Party: Three Principles by Elizabeth Price Foley. Here is a description:

In The Tea Party: Three Principles, constitutional law professor Elizabeth Price Foley takes on the mainstream media's characterization of the American Tea Party movement, asserting that it has been distorted in a way that prevents meaningful political dialogue and may even be dangerous for America's future. Foley sees the Tea Party as a movement of principles over politics. She identifies three "core principles" of American constitutional law that bind the decentralized, wide-ranging movement: limited government, unapologetic U.S. sovereignty, and constitutional originalism. These three principles, Foley explains, both define the Tea Party movement and predict its effect on the American political landscape. Foley explains the three principles' significance to the American founding and constitutional structure. She then connects the principles to current issues as health care reform, illegal immigration, the war on terror, and internationalism.

Download of the Week

The Download of the Week is Statutory Genres: Substance, Procedure, Jurisdiction by Karen Petroski. Here is the abstract:

To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule’s effects on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This article offers the first systematic comparison of two types of legal characterization that have figured prominently in major recent Supreme Court decisions: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. Doctrine on the latter distinction has coalesced to win surprising consensus in recent years, while issues relating to the former distinction have continued to divide the Court. The article shows how, despite these differences, doctrine in each area is an example of the same activity — identification of the “genre” or kind to which particular legal texts belong — and therefore also an aspect of legal interpretation, although the Court has never explicitly recognized as much. The analysis helps to explain the relative success of recent jurisdictional-characterization doctrine, compared to Erie doctrine, and indicates specific new lines of development for both doctrinal areas. More broadly, the comparison suggests why purely formalist approaches to legal characterization — insistence on bright-line rules for distinguishing other types of legal rules — are both perennially attractive and inevitably inadequate.

Very interesting and highly recommended.

Levy on Citizen Assemblies in Australia

Ron Levy (Griffith University Law School) has posted Deliberative Constitutional Change in a Polarised Federation (TOMORROW'S FEDERATION, P. Kildea, A. Lynch, G. Williams, eds., pp. 350-370, Federation Press, 2012) on SSRN. Here is the abstract:

Citizens’ Assemblies are innovative deliberative democratic processes that recommend constitutional or other key legal reforms. They are formed from 100-plus randomly-selected citizens who convene over several months to learn from experts in a particular area of public policy, and thereafter to recommend a specific law reform. In the 2010 Australian general election, the incumbent Labor government’s promise to create a Citizens’ Assembly attracted strongly unfavourable popular media responses. In contrast, this article reports empirical data showing generally high Australian levels of trust in Citizens' Assemblies and deliberative democracy. The article also engages in further analysis to search for signs that such trust varies with social demographics; marked demographic cleavages could potentially be fatal to the success of reforms. In a first set of results, the article finds surprisingly uniform trust in deliberative democracy across most demographic groups (eg, defined by age, sex, educational achievement, political party and region). However, trust in Citizens’ Assemblies, while still generally uniform, is subject to more variation, including intriguing regional, populist and other distinctions.

Kovacic-Fleischer on Cohabitation, Restitution, & Unjust Enrichment

Candace Kovacic-Fleischer (American University, Washington College of Law) has posted Cohabitation and the Restatement (Third) of Restitution & Unjust Enrichment (Washington and Lee Law Review, Vol. 68, p. 1407, 2011) on SSRN. Here is the abstract:

The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for "gratuitous" contributions. This Article reviews societal and legal changes for women since 1937 and notes that, in adding Section 28, the Restatement (Third) followed the methodology of the Restatement (First). The Article reviews the principles of restitution and demonstrates how Section 28 follows them. Section 28 is a welcome addition to the law of restitution, but the author suggests that some of the recoveries described in the illustrations are inadequate. For example, since homemaking services do not have a market value, attempting to put a monetary value on them tends to undervalue them. Limiting recovery to the value of services also ignores the concept of tracing the value of one's contribution to an asset and recovering the enhanced value of the asset. The name in which the assets are titled should not negate the value of the contributions of the partner without nominal ownership. On the other hand, some illustrations to Section 28 describe adequate remedies, including sharing assets. The author notes the complexity inherent in measuring value in nonmarket, nonmarriage situations, but recommends that the illustrations with the more generous recoveries are appropriate for avoiding the unjust enrichment of one partner.

Magarian on the First Amendment

Gregory P. Magarian (Washington University in Saint Louis - School of Law) has posted Speaking Truth to Firepower: How the First Amendment Destabilizes the Second on SSRN. Here is the abstract:

When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s legal potency. Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines. He then contends that the longstanding debate about whether constitutional speech protections primarily serve collectivist or individualist purposes models a useful approach for interpreting the Second Amendment. Under that approach, the language of the Second Amendment’s preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment. The individual right to keep and bear arms, contrary to the Heller Court’s fixation on individual self-defense, must serve some collective interest. Many gun rights advocates urge that the Second Amendment serves a collective interest in deterring – and, if necessary, violently deposing – a tyrannical federal government. That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change. Professor Magarian contends, however, that we should prefer debate to violence as a means of political change and that, in fact, the historical disparity in our legal culture’s attention to the First and Second Amendments reflects a longstanding choice of debate over insurrection. Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment. The article concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action.

Highly recommended, although I found the discussions of the relationship between originalist theory and the particular issue that Magarian addresses to be somewhat cryptic. For my take, see District of Columbia v. Heller and Originalism.

Prakash on the Vesting of Appointments under the U.S. Constitution

Saikrishna Prakash (University of Virginia - School of Law) has posted When an Appointment Vests on SSRN. Here is the abstract:

The most important question in the most famous constitutional law case has been largely ignored, obscuring the political machinations that generated the case. This article recounts the actual events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, supposedly on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s delivery argument was a post-hoc rationalization, having nothing to do with his actual actions in March of 1801. Adams’s midnight appointments outraged Jefferson, leading the new President to treat all of the justice of the peace appointments as nullities, even those who had received a commission. In other words, the failure to deliver commissions mattered not a whit to Jefferson. This article also addresses whether William J. Marbury and the others who never received their commissions were nonetheless appointed, considering five theories of when an appointment vests: when the Senate consents; after consent but before commissioning; when commissioning occurs; with the delivery of a commission; and with acceptance of the office. In the course of laying out these theories, the article discloses the surprising fact that prior to becoming President, Jefferson endorsed the second theory, namely that appointments vest before the act of commissioning. The article also reveals that, well before Marbury v. Madison, the Adams Administration also concluded that appointments could vest prior to any commission being issued or delivered. Notwithstanding this surprising agreement between Secretary of State Jefferson and President John Adams, the article contends that none of the five theories is correct because each reads the Constitution as enshrining a single answer regarding when an appointment vests. There is no single answer. Rather an appointment vests whenever the President determines that it shall be complete. The Constitution grants power to the President to appoint, never precisely specifying when or how an appointment vests. By not specifying when or how appointment is made, the Constitution leaves it to the President to decide the manner in which he makes the appointment. This conclusion derives from a general principle of constitutional law: When the Constitution grants power to an entity but does not specify the precise means by which it will be exercised, the possessor of that power may decide the means of exercising it. Based on this principle and a copy of a commission granted to another justice of the peace on March 3, 1801, it is almost certain that John Adams had appointed William J. Marbury on that day. If we assume that all the justice of the peace commissions made out that day were identical (save for the name of the appointee), Adams appointed Marbury prior to leaving office because the text of Marbury’s commission would have indicated that Adams had appointed him.

Moore on Intent, Consent, & Battery

Nancy J. Moore (Boston University School of Law) has posted Intent and Consent in the Tort of Battery: Confusion and Controversy on SSRN. Here is the abstract:

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery, stemming in part from the completion of various stages of the Restatement (Third) of Torts and the current position of the ALI that it will not attempt a restatement of the non-economic intentional torts that were addressed in great detail in the Restatement (Second) on the grounds that intentional tort doctrine is clear and that the Restatement (Second) provisions have been widely adopted.

This article joins the work of several torts scholars who have recently questioned the clarity of intentional tort law doctrine. These scholars have focused on the ambiguity of the Restatement’s provisions with respect to the intent to cause a harmful or offensive bodily contact, that is, whether these provisions require both intent to cause bodily contact and intent to cause harm or offense (dual intent) or whether it is sufficient that the defendant intends a bodily contact that turns out to be either harmful or offensive (single intent). Some of these scholars have also suggested that the essence of battery is not the intent to cause a harmful or offensive contact, but rather the intent to cause an unpermitted contact.

This article demonstrates that the current confusion and controversy over battery law doctrine is far more extensive than even these recent torts scholars have demonstrated. It extends beyond the element of intent and includes uncertainty concerning the role of the plaintiff’s lack of actual or apparent consent---that is, whether consent is an affirmative defense or whether lack of consent is an element of the plaintiff’s prima facie case---and the relationship between intent and lack of consent. Moreover, this confusion and controversy is reflected not only in modern battery court opinions, but also in the cursory and contradictory treatment given to battery law in most torts casebooks and treatises. Finally, despite the ALI’s assumption that the Restatement provisions have been widely adopted, there are many jurisdictions where courts are formulating battery doctrine using terminology that departs significantly from the Restatement provisions.

Part I of this article gives a detailed account of the current confusion and controversy in battery doctrine. Part II provides a brief account of the historical development of the modern tort of battery, which is necessary to understanding why it is that so many courts do not follow the Restatement’s formulations and how it is that they came to adopt a variety of different and sometimes contradictory formulations. Part III analyzes the ambiguity of the relevant Restatement provisions, rejecting the argument of some tort scholars that only the single intent rule can explain the apparently uniform results in certain kinds of cases, such as those involving practical jokers and those involving physicians and other persons whose purpose is to help, not to harm or offend. This part argues that these cases are better explained by acknowledging that certain medical procedures, such as operations, necessarily involve harmful contacts (even when ultimately beneficial) and that physicians and others often know that, in the absence of consent, certain bodily touchings will be offensive. By clearly separating the elements of intent and absence of consent, satisfaction of the intent element of battery is easily explained under both single and dual intent rules, thereby leaving resolution of these cases to a determination whether the defendant will be relieved of liability on the ground of actual or apparent consent. Part IV of the article confronts the relevant policy considerations in choosing between single and dual intent, considerations that necessarily involve the appropriate distinctions between intentional and non-intentional torts. It concludes that there is no justification for preferring the single intent rule and thereby departing from the moral fault principle that underlies much of modern tort law. It also rejects the argument from some recent tort scholars that the principle of “bodily integrity” demands fuller protection than that afforded under the dual intent rule. Part V addresses the special problem of consent in medical cases where the physician honestly but mistakenly believes that the patient has consented to the treatment provided. It agrees that physicians should not be liable in battery (as opposed to negligence) unless they knowingly depart from the patient’s wishes, but then argues that this result is a clear departure from traditional consent doctrine and should, for the most part, be limited to medical cases. Part V concludes by proposing, at least in concept, how the Restatement (Third) might best reformulate intentional tort doctrine in cases involving either harmful or offensive battery.

Recommended.

Petroski on Statutory Genres

Karen Petroski (Saint Louis University School of Law) has posted Statutory Genres: Substance, Procedure, Jurisdiction on SSRN. Here is the abstract:

To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule’s effects on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This article offers the first systematic comparison of two types of legal characterization that have figured prominently in major recent Supreme Court decisions: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. Doctrine on the latter distinction has coalesced to win surprising consensus in recent years, while issues relating to the former distinction have continued to divide the Court. The article shows how, despite these differences, doctrine in each area is an example of the same activity — identification of the “genre” or kind to which particular legal texts belong — and therefore also an aspect of legal interpretation, although the Court has never explicitly recognized as much. The analysis helps to explain the relative success of recent jurisdictional-characterization doctrine, compared to Erie doctrine, and indicates specific new lines of development for both doctrinal areas. More broadly, the comparison suggests why purely formalist approaches to legal characterization — insistence on bright-line rules for distinguishing other types of legal rules — are both perennially attractive and inevitably inadequate.

Very interesting and highly recommended.

Prakash & Devins on the Duty to Defend Federal Statutes

Saikrishna Prakash and Neal Devins (University of Virginia - School of Law and William & Mary Law School) has posted The Indefensible Duty to Defend (Columbia Law Review, Vol. 112, April 2012) on SSRN. Here is the abstract:

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the DOMA, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation authority. Third, our analysis of refusals to defend shows that the duty to defend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its supposed benefits arise from getting the courts to opine on the constitutionality of laws. But courts typically have that opportunity as a result of executive enforcement of a law it believes is unconstitutional. Nothing further is gained by having the executive voice insincere and halfhearted arguments when others sincerely can advance strong ones. Or, we should say, nothing except enhancing the DOJ in the eyes of Congress and the courts at the expense of the President’s constitutional vision, which is what the duty to defend is all about.

Highly recommended!

Flanagan on Judicial Globalization & the New Zealand Supreme Court

Brian Flanagan (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Judicial Globalization and the Theory of Law: A Survey of the New Zealand Supreme Court on SSRN. Here is the abstract:

A recent survey study of ten supreme courts drew responses from the entire New Zealand Court of 2006 (Flanagan & Ahern 2011). I extract the data specific to the New Zealand Court to describe some features of its attitude towards the use of transnational materials. Drawing on the larger survey, I seek to model the Court’s practice of transnational legal argument and find that none of the leading theories of judicial comparison uniquely fits the data. Turning to jurisprudence, I argue that the failure of the theory that foreign law is used to enhance the quality of legal conclusions suggests that Dworkin’s famous 'semantic sting' criticism mischaracterizes the phenomenology of appellate adjudication.

Smith on Court Orders

Stephen A. Smith (McGill University - Faculty of Law) has been posted Why Courts Make Orders (and What this Tells Us About Damages) (Current Legal Problems, Vol. 64, pp. 51-87, 2011) on SSRN. Here is the abstract:

The rules governing the availability and content of court orders are well-known, but orders themselves are little studied. Focusing on final orders made in private litigation (eg, to pay a sum of money, to give up possession of land), I argue that orders are fundamentally commands. Unlike rules (which purport to provide moral guidance) and sanctions (which provide material incentives), orders simply tell their subjects to do or not to do an action. Orders are meant to be practically, not morally, authoritative. Thus understood, orders are appropriately used for two main purposes: (i) to motivate defendants to perform actions required by rule-based duties (replicative orders); (ii) to motivate defendants to perform actions that are not, and in principle should not be, required by rule-based duties (creative orders). The first category is limited to actions that, in the courts’ view, defendants have moral duties to perform; the latter to all other actions. In the second half of the essay, I apply these ideas to damages orders, and make three main arguments. First, damages orders are creative orders. Secondly, many contemporary theories of damages must be rejected because they assume that a duty to pay damages arises on injury and, further, that it is a moral duty. Scholars seeking to explain damages have two basic options: they can adopt an instrumentalist theory or they can argue that damages orders are intended, in broad outline, to do what retributivist theorists think punishment does. In practice, the latter option entails arguing, broadly, that damages are meant either to restore a normative equilibrium or to communicate the wrongness of the defendant’s act. Finally, I tentatively suggest that theories in the latter group are appropriately described as corrective justice theories.

Highly recommended. Download it while its hot!

Scordato on Tamanaha on the Formalist-Realist Divide

Marin Roger Scordato (Catholic University of America (CUA) - Columbus School of Law) has posted Book Review of Brian Tamanaha's Beyond the Formalist-Realist Divide: The Role of Politics in Judging (University of Richmond Law Review, Vol. 46, p. 659, 2012) on SSRN. Here is the abstract:

Prof. Tamanaha seeks to show that many judges of the formalist era did not publicly espouse the kind of rigid, doctrinaire formalism that is so often ascribed to them. Instead, he suggests, many jurists thought to be formalists held a far more nuanced view of common law jurisprudence that was far closer to the traditional realist account than is generally supposed. Similarly, Prof. Tamanaha seeks to demonstrate that many classic legal realists, including Jerome Frank, Roscoe Pound and Karl Llewellyn, acknowledged the “rule bound” nature of actual adjudication much more than the conventional account suggests. His ambition in the book is nothing less than to thoroughly debunk and disprove the conventional account of the development of common law jurisprudence in the first half of the twentieth century.

And here is a link to Tamanaha's important book.

Chapman & McConnell on Due Process as Separation of Powers

Nathan S. Chapman and Michael W. McConnell (Stanford Constitutional Law Center and Stanford Law School) have posted Due Process as Separation of Powers (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

From its conceptual origin in Magna Charta, due process of law has required that government can only deprive persons of rights pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern "substantive due process" have obscured the way that many American lawyers and courts understood due process to limit the legislature from the revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was the court's role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key 20th century cases which have not been fully analyzed under the requirements of due process of law.

Highly recommended. Download it while its hot!

Graham on Tort & New Technology

Kyle Graham (Santa Clara University School of Law) has posted Of Frightened Horses and Autonomous Vehicles: Tort Law and its Assimilation of Innovations (Santa Clara Law Review, Forthcoming) on SSRN. Here is the abstract:

This symposium contribution considers five recurring themes in the application of tort law to new technologies. First, the initial batch of cases presented to courts may be atypical of later lawsuits that implicate the innovation, yet relate rules with surprising persistence. Second, these cases may be identified, and resolved, by reference to analogies that rely on similarities in form, and which do not wear well over time. Third, it may be difficult to isolate the unreasonable risks generated by an innovation from the benefits it is perceived to offer. Fourth, potential claims by early adopters of the technology may be more difficult to identify and recover upon than those that arise later, once the technology develops a mainstream audience. Fifth, and finally, uncertainty among potential plaintiffs (and their counsel) regarding the existence of a cause of action and the likelihood of recovery may beget a dearth of claims that involve an innovation for a significant period of time after its initial appearance. In introducing and explaining these themes, this article considers the initial application of tort law to technologies such as automobiles, airplanes, radio and television, and Tasers.

Todres on Maturity

Jonathan Todres (Georgia State University College of Law) has posted Maturity (Houston Law Review, Vol. 48, pp. 1105-1163, 2012) on SSRN. Here is the abstract:

Across numerous areas of the law — including family law, criminal law, labor law, health law, and other fields — when children are involved, maturity determinations are pivotal to outcomes. Upon reaching maturity, an individual has access to a range of rights not previously available and is expected to fulfill certain duties. Despite the central importance of maturity, the law’s approach to it has been to consider the concept in a piecemeal and issue-specific fashion. The result is a legal construct of maturity that is anything but consistent or coherent. For example, every state has a minimum age below which a child is considered not mature enough to consent to sex. However, if money is involved, more than forty states deem that child mature enough to have consented to sex for money and be charged with the crime of prostitution (even if the money is paid to a pimp and the child never sees it). This Article seeks to undertake a holistic assessment of the law’s approach to maturity.

Markers of maturity in the law frequently occur at different points in time. Children are deemed mature enough to participate in the polity (e.g., vote) at a different age from when they are deemed mature enough to exercise independent economic power (e.g., work), control their own bodies (e.g., engage in consensual sex), or assume adult social responsibilities (e.g., drink alcohol in public places). In short, the law provides little clear guidance on how maturity should be understood and treated. Recent research on brain development and the work of cognitive psychologists provide some answers. To date, however, a significant consideration has been largely overlooked: cultural conceptions of maturity. Thus, this Article seeks to incorporate cultural perspectives on maturity into the dialogue. More broadly, this Article aims to bring some clarity to the issue of maturity and examine whether cultural practices can inform the legal, policy, and moral questions in the law’s approach to maturity.

Bellia & Clark on Subject-Matter Jurisdiction & the Alien Tort Statute

Anthony J. Bellia Jr. and Bradford R. Clark (Notre Dame Law School and George Washington University Law School) have posted Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute (Georgetown Journal of International Law, Vol. 43, 2012) on SSRN. Here is the abstract:

The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel — whether corporate or individual — are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits between aliens. The First Congress enacted the ATS as a species of foreign diversity jurisdiction to satisfy the United States’ obligation under international law to redress violence by U.S. citizens against foreign citizens. Accordingly, the ATS was originally understood to give federal courts jurisdiction only over claims by aliens against U.S. citizens for intentional torts to person or personal property. In Sosa v. Alvarez-Machain, the Supreme Court sought to interpret the ATS in accordance with the expectations of the First Congress. If the Court adheres to this goal in Kiobel, then it should conclude that it lacks statutory subject matter jurisdiction over the case. If the Court decides that the ATS does not apply to suits between aliens, then the Court likely will never have occasion to decide the thorny question of corporate liability under the ATS. Under the express terms of 28 U.S.C. §1332, federal courts already have jurisdiction over suits by aliens against U.S. corporations provided that the amount in controversy is greater than $75,000.00 — a condition easily met in cases against large corporations.

Inazu on Virtual Assembly

John D. Inazu (Washington University in Saint Louis - School of Law) has posted Virtual Assembly (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: do online groups implicate the kinds of values that warrant elevated constitutional protection. The second question is doctrinal: what is the best framework for providing constitutional protection to these groups.

The Article argues that we should protect online groups because they advance important First Amendment values and because the line between our offline and our online groups is collapsing. Turning to the doctrinal question, the Article draws from both historical sources and analogies to free speech doctrine to show that the First Amendment’s right of assembly is capacious enough to protect online groups. The Article concludes with some tentative applications of virtual assembly to legal controversies: an online forum that excludes on the basis of gender, a state law that prohibits private Facebook communications between teachers and students, an online church that expels dissident members, and an online dating service that makes only same-sex matches.

Virtual Assembly makes four contributions to emerging scholarship at the nexus of constitutional law, cyberlaw, sociology, and political theory. First, it demonstrates the normative and prudential reasons for protecting online groups. Second, it shows how expression includes the acts of exclusion, embrace, expulsion, and establishment (an observation that calls into question the Supreme Court’s category of “expressive association”). Third, it explains how the right of assembly applies in online contexts. Finally, it introduces the concept of nested groups — online groups that exist within other structural frameworks, such as Facebook and Internet service providers.

Highly recommended.

Prakash on Posner & Vermeule on Executive Power

Saikrishna Prakash (University of Virginia - School of Law) & Michael D. Ramsey (University of San Diego School of Law) have posted The Goldilocks Executive (Texas Law Review, 2012) on SSRN. Here is the abstract:

The Executive Unbound, by Eric Posner and Adrian Vermeule, is terrific — thought provoking and refreshing. It is a challenging must-read for those who believe that the Executive can or must be reigned in by Congress or the courts and for those who believe that the Executive has improperly usurped the powers of the other branches, becoming the most roguish branch of government.

Posner and Vermeule have shown that the modern Executive is much less bound by law than in the past and that in general this may be for the good. But they have not shown that the Executive is wholly unbound by law, or that the Executive should be. Part I of our review describes the book’s central arguments and situates it within the executive power literature. Part II concludes that Posner and Vermeule substantially overstate the lack of constraint the Executive faces in the modern era. Part III considers The Executive Unbound as a normative argument for adopting a legally unbound executive and finds the case not proven. We tentatively conclude that separation of powers and related constraints play an important role in creating something of a “Goldilocks Executive”: an executive neither much too strong nor much too weak, but about right.

Highly recommended. Download it while its hot!

Bix on Enoch on Law's Reason Giving Power

Check on Brian Bix's Jotwell piece on David Enoch's Reason-Giving and the Law.

Claeys on Smith on Property Theory

Eric R. Claeys (George Mason University) has posted Exclusion and Legal Theory: A Comment on Property as the Law of Things on SSRN. Here is the abstract:

This Comment responds to an article by Professor Henry Smith, “Property as the Law of Things,” forthcoming in a symposium sponsored by the Harvard Law Review on “The New Private Law Theory.” In his lead Article, Professor Smith critiques what he calls the “bundle” picture of property, which he attributes to Legal Realists. This Comment argues that “Property as the Law of Things” does not go far enough in breaking with Legal Realist theory, because it assumes a social-scientific view of legal theory and an instrumentalist command theory of law.

This Comment draws on private-law and jurisprudential analytical scholarship arguing that the study of law requires attention to law’s internal point of view. From the internal point of view, a comprehensive account of property must acknowledge that property laws are meant to secure and reconcile interests in using external assets – interests of owners and non-owners both. “Property as the Law of Things” is incomplete because its argument abstracts from citizens’ normative interests in using things. Even if the Article’s information-cost efficiency argument is right, that argument does not supply a satisfactory explanation how the law comes to approximate what efficiency prescribes. In addition, the Article portrays important property doctrines -- riparian rights, de minimis building encroachments, and the relation between the “property” and “tort” components of nuisance – unpersuasively, because it abstracts from the connection between property rights and use.

Feldman on Fallibilism & Legal Pragmatism

Heidi Li Feldman (Georgetown University Law Center) has posted Cardozo Not Holmes, Fallibilism Not Skepticism, Pragmatism Not Legal Realism on SSRN. Here is the abstract:

Philosophical pragmatism, like American Legal Realism, has various strains but the most characteristic ones are motivated by philosophical concerns different from the intellectual concerns that motivated Legal Realism. Legal Realism reacted to classical legal thought, pragmatism reacted to Cartesianism. While there may be some parallels between classical legal thought and Cartesianism – and hence possibly some between schools of thought reacting to each – classical legal thought and Cartesianism occupy two different planes. The battle between classical legal thought and American Legal Realism is internecine. Philosophical pragmatism bears on that fight more globally. If pragmatist philosophical methods and tenets bear on law, legal theory, and legal practice, it will bear on both classical legal thought and American Legal Realism, the objects of both those schools of thought.

Philosophical pragmatism draws our attention to the significance of social practices of all kinds. It does not advocate any one way of construing a social practice; indeed, that sort of methodological unitarianism would be inconsistent with the pragmatist approach to understanding. What pragmatism teaches those interested in law and legal practice is that legal theory is not prior to legal practice; and that legal practices themselves should be the point of departure for giving any more generalized account of how the practice works.

Most previous legal scholarship on law and pragmatism misses the point about philosophical pragmatism's commitment to fallibilism rather than skepticism, and therefore fails to consider the significance of this shift for using pragmatism to understand legal practices, especially adjudication. This is highly evident in the conventional treatment of Oliver Wendell Holmes Jr and Benjamin Cardozo as both pragmatists. Using a representative decision of each, I argue that Holmes is more a radical skeptic than a pragmatist, while Cardozo works in true pragmatist fashion.

Recommended.

Higdon on Law Faculty Hiring & Socioeconomic Bias

Michael J. Higdon (University of Tennessee College of Law) has posted A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias on SSRN. Here is the abstract:

In the movie Moneyball — based on the Nationally bestselling novel of the same name — Jonah Hill’s character, Peter Brand remarks, “People are overlooked for a variety of biased reasons and perceived flaws.” Although his character was referring to baseball players, the same could be said of those who attempt to secure jobs as law professors. In fact, many law students are later surprised to learn that their ability to secure a job as a law professor has much less to do with what they have might have done during their legal careers, and more to do with simply the law school from which they graduated. As noted in the recent book Becoming a Law Professor: A Candidate’s Guide : “Like it or not, the data says that the most important aspect [of being a successful applicant] is having received a J.D. from an Ivy League or Ivy League equivalent law school.”

I have written this article to, first, voice my criticism of this narrow approach to faculty hiring and, second (and more importantly), to provide what I hope will be a more compelling justification for faculty appointment committees to ease up on the emphasis they place on academic pedigree. Namely, to the extent a law school values having a socioeconomically diverse faculty, hiring exclusively from elite law schools makes achieving that goal more unlikely. After all, numerous studies have revealed that those students who attend the elite law schools are overwhelming representative of the top level of the socioeconomic spectrum.

In fact, a recent study by Professor Richard Sander found that “roughly half the students at [the elite law] schools come from the top tenth of the [socioeconomic status spectrum], while only about one-tenth of the students come from the bottom half.” And it is no accident that such a disparity exists. As I explore in the article, it is not lack of intellect that keeps those from lower socio-economic backgrounds out of the elite law schools; instead, it is the lack of “economic inheritance.” As one scholar points out, “It is commonly acknowledged that if a child is born poor, she has less chance of getting ahead than a child born into the upper or upper-middle classes — even if the poor child is just as naturally talented or hard working as her more advantaged peer.” In fact, “statistically, the least academically qualified students from wealthy families have as much chance of going to college as the highest performing kids from low-income families.”

As such, hiring faculty members from primarily the elite law schools undermines a law school’s ability to achieve socioeconomic diversity on its faculty and instead helps perpetuate a class-based monopoly within the legal academy — to the detriment of all involved. Specifically, as Dean Kevin A. Johnson recently put it: “Although it is somewhat cliché to say it, law students want and need role models.” For instance, when talking about racial minorities, Dean Johnson states that “the presence of historically underrepresented minorities on law faculties sends a message to students of color — and most effectively ‘teaches’ them — that they in fact belong in law school and the legal profession, as well as that they have the ability to be top-flight lawyers, judges, and policy makers.” The same can be said of those students from lower socioeconomic backgrounds.

Second, if law schools are truly marketplaces of ideas, then faculty diversity enhances that environment by broadening the number of available perspectives. Justice O’Connor noted in Grutter v. Bollinger that diversity among law students seeks to “ensure their ability to make contributions to the character of the Law School.” Faculty diversity serves the same purpose. As one scholar notes: “might it not be possible — some would contend probable — that a woman teaching the law of rape, abortion, or employment discrimination might present the law to students in different ways, with different perspectives, experiences, and — at a most fundamental level — knowledge than her male counterparts.” Again, the same can be said for professors from lower socioeconomic backgrounds

Finally, the different perspective that these individuals bring to the classroom would also contribute to their scholarship, thus benefiting the entire academy. One need only look to the momentous contributions such movements as Critical Race Theory and Feminist Legal Theory have brought to the academy to see the potential benefit that other minority groups could bring to the table.

For these reasons, I conclude the article by proposing that when a law school engages in faculty hiring, it treat academic pedigree as merely one factor in the hiring determination – not the sole determinant as it is commonly used today. Although we are unlikely to ever eliminate all class-bias when it comes to faculty hiring, our inability to effectuate change on all fronts makes it all the more imperative that we absolutely change the things we can control. And what we are capable of doing, should we so choose, is to treat academic pedigree as merely one piece of the hiring puzzle that we then actively supplement with other information — information more relevant to the individual’s proven talents and less a reflection of the individual’s socioeconomic background.

Meyer & Lund on the Role of the Judiciary

Eugene B Meyer and Nelson Lund (Federalist Society and George Mason University School of Law) have posted The Foundations of the U.S. Judiciary (Tea Party Patriots: The Second American Revolution, Mark Meckler & Jenny Beth Martin, eds, Henry Holt, pp. 153-58, 2012) on SSRN. Here is the abstract:

This is a manifesto - a Tea Party manifesto - calling for a restoration of the judiciary to its original and proper place in our constitutional system.

Pursley on Defeasible Federalism

Garrick B. Pursley (The University of Toledo College of Law) has posted Defeasible Federalism on SSRN. Here is the abstract:

What does it mean for federalism — obviously an issue of constitutional magnitude — to influence constitutional doctrine without being the object of constitutional doctrine? My descriptive claim is that this does occur — concern about the effects of government action or constitutional doctrine on the viability of the federalist system have influenced doctrinal formulation in Commerce Clause cases, dormant Commerce Clause cases, preemption cases, and constitutional rights cases, among other areas. But, to date, the constitutional theory literature has overlooked the basic question of the nature and conceptual status of what courts call, variously, federalism “impacts,” “effects,” or “concerns” in these peculiar contexts. Federalism does not always have the decisive weight conventionally attributed to constitutional norms — it functions as a defeasible reason for decision in some situations. How can a constitutional norm be overridable by non-constitutional — even non-legal — considerations in certain cases? We need new analytic tools to distinguish federalism’s different roles. I develop an account in which federalism’s normative force varies from full and decisive where the stakes for the stability of the constitutional structure are high to overridable where the structural stakes are lower but the public policy stakes are high.

Interesting & recommended.

Pollack & Shaffer on Formal & Informal Lawmaking

Mark A. Pollack and Gregory Shaffer (Temple University - Department of Political Science and University of Minnesota - Twin Cities - School of Law) have posted The Interaction of Formal and Informal Lawmaking (INFORMAL INTERNATIONAL LAWMAKING, Joost Pauwelyn, R. Wessel & Jan Wouters, eds., Oxford University Press, 2012) on SSRN. Here is the abstract:

Informal international lawmaking (IN-LAW) is an important and increasingly common phenomenon of contemporary international life. IN-LAW, however, has not replaced formal lawmaking, but exists alongside it, with multiple, overlapping formal and informal procedures often addressing the same substantive issues in world affairs. Why would states choose to address any given issue through formal or an informal lawmaking – and why might they do both simultaneously? Furthermore, once two or more formal and informal lawmaking processes are underway, how do they interact in practice? To get at these questions theoretically, we develop two distinct theoretical models, one functionalist and the other distributive, and derive predictions about the conditions under which formal and informal procedures interact in complementary or antagonistic fashion. Moving from theory to empirics, we apply the theory to a series of cases, including the regulation of genetically modified foods, the protection of cultural diversity, climate change, humanitarian intervention, intellectual property rights and the legality of nuclear weapons, exploring in each case the motivations of states in establishing formal and informal law-making systems, as well as the complementary or antagonistic interaction of these systems in practice.

Sohoni on "Too Much Law"

Mila Sohoni (New York University (NYU) - School of Law) has posted The Idea of 'Too Much Law' (Fordham Law Review, Vol. 80, 2012) on SSRN. Here is the abstract:

If brevity is the soul of wit, what is verbosity the soul of? Of overweening, inefficient, even tyrannical government — at least according to the critics who, for years, have bewailed the fact that federal laws and regulations are growing by the minute, by the mile, and by the metric ton. These critics argue that America suffers from “hyperlexis,” or the existence of too much law, and their calls for remedies to that malady are now finding a receptive ear in the highest echelons of the federal government. The idea that there is too much federal law has been embraced by all three branches of government and by members of both major political parties.

In order to analyze these claims, this Article taxonomizes and evaluates the most common claims of hyperlexis in federal law, including the claims that federal laws and regulations are too numerous, too complex, too costly, and too invasive of state and local prerogatives. Once these arguments are untangled, their individual flaws become evident. Almost each account of federal hyperlexis faces serious conceptual obstacles in either its technique for measuring hyperlexis or in its method for remedying it.

This Article then notes one argument that has not been convincingly made: the argument that the proliferation of federal law results from a democratic failure. No public choice account plausibly explains the persistent and widespread overgrowth of law. But the absence of such an account cannot, of course, put a stake through the heart of the hyperlexis critique, which implicates deeply embedded philosophical beliefs concerning the nature of individual liberty and the proper role of government. The critique represents a challenge to the legitimacy of law that current theories of law’s legitimacy are not oriented to deflect. We are left, then, in the worst of both worlds. The hyperlexis critique does not map out a means to achieve the goal of reducing the amount of federal law, but the currency of the critique has corrosive effects upon the sociological legitimacy of federal law and institutions.

Recommended!

Mulligan on Mims v. Arrow Financial Services & Federal Question Jurisdicition

Lumen N. Mulligan (University of Kansas Law School) has posted You Can't Go Holmes Again on SSRN. Here is the abstract:

Under the standard interpretation of 28 U.S.C. § 1331, the so-called Holmes Test, pleading a federal cause of action constitutes a sufficient condition for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, re-characterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this right-inclusive view rests upon a firmer jurisprudential framework than does the Holmes test, as the latter is intertwined with an anachronistic pairing of causes of action and rights and Justice Holmes’ overall “bad man” jurisprudential position. I argue further that Mims’ rights-inclusive approach more accurately describes § 1331 doctrine as a whole, helping to illuminate that — contrary to the Holmes test — merely pleading a federal cause of action is neither necessary nor sufficient for taking statutory federal question jurisdiction. I also demonstrate that this rights-inclusive view is more solicitous of the intent of the 1875 Congress, which passed § 1331, and of the intentions of later-in-time Congresses, which pass legislation against the presumption that federal rights provide grounds for taking federal question jurisdiction, than is the Holmes test.

Davis on Coleman on the Nature of Law

Joshua P. Davis (University of San Francisco - School of Law) has posted Jurisprudential Jujutsu on SSRN. Here is the abstract:

Jules Coleman’s article, “The Architecture of Jurisprudence,” Yale Law Journal, Vol. 121, p. 2, 2011, seeks to adapt legal positivism to accommodate a greater degree of normativity than conventional wisdom would allow. One might describe his effort to preserve positivism by yielding as a form of jurisprudential jujutsu. This response argues that Coleman’s jujutsu, at least as he has developed it thus far, fails to the extent law has moral legitimacy.

Graycar on a Feminist Adjudication Process

Reg Graycar (University of Sydney - Faculty of Law) has posted A Feminist Adjudication Process: Is There Such a Thing? (GENDER AND JUDGING, U. Schulz and G. Shaw, eds. , Hart Publishing: Oxford, Forthcoming) on SSRN. Here is the abstract:

This paper brings together two separate but related areas of my research: first, my work on gender and judging (or adjudication)– and secondly work I have done with Jane Wangmann on legal responses to systemic injuries or historical harms. One of the focuses of our research on historical harms was an agreement made in the mid 1990s between a group of women survivors of childhood abuse and the government of Ontario (the “Grandview Agreement”) that established what has often been described as a “feminist” process for addressing the injuries that these women sustained. This paper interrogates the suggestion that creative redress packages could enhance gender equality. Specifically, I ask whether a model such as what the Grandview Agreement put in place can appropriately bear the ascription of a ‘feminist’ adjudication process. More broadly, the chapter considers whether there is such a thing as a ‘feminist’ adjudication process.

The paper asks the following questions:

• Has the feminist inquiry – often presented as “will women judges/decision-makers make a difference” - been misplaced? Are we failing to ask whether adding women, or more specifically feminists, or indeed, any jurisprudential outsiders to the existing legal structures can itself bring about any effective change?

• Should we instead focus on whether there is space for feminist insights to be introduced into the legal decision-making process, and if there is, at what stage? Can feminist insights assist in designing adjudication processes, rather than being introduced only at the decision-making stage?

• What if anything distinguishes a ‘feminist’ process from a ‘good’ process?

Hoffman & Wilkinson-Ryan on the Psychology of Contract Precautions

David A. Hoffman (Temple University - James E. Beasley School of Law; Cultural Cognition Project at Yale Law School) & Tess Wilkinson-Ryan (University of Pennsylvania Law School) have posted The Psychology of Contract Precautions on SSRN. Here is the abstract:

This research tests the intuition that parties to a contract approach each other differently before the contract is formed than they do once it is finalized. We argue that one of the most important determinants of self-protective behavior is whether the promisee considers herself to be in negotiations or already in an ongoing contract relationship. That shift affects precaution-taking even when it has no practical bearing on the costs and benefits of self-protection: the moment of contracting is a reference point that frames the costs and benefits of taking precautions. We present the results of three questionnaire studies in which respondents indicate that they would be more likely to protect their own interests — by requesting a liquidated damages clause, by purchasing a warranty, or by shopping around to ensure the best deal — when the contract is not yet finalized than they would when they understand the agreement to be finalized. We discuss competing explanations for this phenomenon, including both prospect theory and cognitive dissonance. Finally, we explore some doctrinal implications for work on disclosure, modification, and promissory estoppel.

Highly recommended!

Feldman on Appellate Adjudication & Entangled Legal Concepts

Heidi Li Feldman (Georgetown University Law Center) has posted The Distinctiveness of Appellate Adjudication (Washington University Law Review, Vol. 5, October 2012) on SSRN. Here is the abstract:

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation; entangled legal concepts facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. In the paper itself, I demonstrate more fulsomely what it is for a legal concept to be an entangled one and how entanglement supplies guidance in adjudication. I also broach how entanglement in legal concepts and engineered entanglement have significance for legal pedagogy; appellate adjudication; the respective roles of the judiciary, the legislature, and administrative agencies; the erosion of the distinction between so-called public law and so-called private law; and our understanding of the fact/value distinction.

Understanding more specifically the nature of the entanglement at work in appellate adjudication requires much closer scrutiny of appellate opinions than we usually give. In this paper, I examine carefully the background to MacPherson v. Buick and Justice Benjamin Cardozo’s particular re-engineering of ‘negligence’ and ‘duty’ - entangled concepts belonging to the same legal taxonomy. Via this scrutiny, I demonstrate the flaws in the engineering of some concepts in the buildup to MacPherson, and how these flaws led to those concepts’ collapse and ultimately to Cardozo’s re-engineering of ‘negligence’ and ‘duty’. I also explain why careful understanding of the engineering of entangled legal concepts can make us appreciate that even the most successful of such concepts have within in them the grounds for their own obsolescence.

To show conceptual engineering of entangled concepts occurs outside the context of state common law, I also examine how the Supreme Court has engineered ‘commerce’, itself an entangled concept. This secondary example also clarifies the nature of entanglement and engineering it.

This article concerns appellate adjudication in any area of law. I maintain that whether we are dealing with private law or public law, common law or statutory law or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and the constraints judges work with when they work with legal concepts that entangle fact and value.

Recommended!

Dagan on a Pluralist Conception of Property

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted Inside Property (University of Toronto Law Journal, Vol. 63, No. 1, January 2013) on SSRN. Here is the abstract:

Taking seriously the complexity and heterogeneity of property law, this Essay claims that a proper conception of property must account for both governance and inclusion. Neglecting governance obscures the significance of the internal life of property, which is often structured by sophisticated mechanisms aiming to facilitate various forms of interpersonal relationships in ways that no contractual arrangement can. Ignoring inclusion improperly marginalizes non-owners’ rights to entry in categories of cases where inclusion is an indispensable feature of the property institution under examination.

Looking inside property in these two senses requires abandoning the conception of property as an exclusive right and substituting it with a pluralist conception. Property should be understood as an umbrella for a limited and standardized set of institutions, which serve as important default frameworks of interpersonal interaction regarding various types of resources. At its best, the plurality of property configurations — the different contents of owners’ rights in these different property institutions — enables property law to vindicate differing balances among the different values that property can serve, according to the type of social relationship and the nature of the resource at stake. The pluralist conception of property, therefore, not only fits property law better; it is also the only understanding of property suitably attending to and facilitating the individuality-enhancing role of multiplicity, which is indispensable for meaningful autonomy.

Highly recommended.

Legal Theory Lexicon: Originalism

Introduction

There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the ratification debates,The Federalist Papers, and the historical practice shortly after ratification of the Constitution of 1789 (or to equivalent sources for amendments) is an old one. This post provides a very brief introduction to "originalism" that is aimed at law students (especially first-year law students) with an interest in legal theory.

Originalism is not just an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the Democrats was seen as a political rejection of originalism. The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory--Associate Justices Antonin Scalia and Clarence Thomas and two others, John Roberts and Samuel Alito who may also be receptive to originalist arguments.

The Origins of Originalism

No one scholar or judge deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from "the original intentions of the framers" to the "original public meaning of the constitutional text."

The New Originalism

The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from "original intentions" to "original public meaning," but two other developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an "originalist," but many of Ackerman's former students do work that is implicitly or explicitly originalist.)  Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists.  The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism.  Balkin's article, "Abortion and Original Meaning" (link provided below) elicited a good deal of commentary and criticism.

After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is just as likely to hear pronouncements of a different sort: "we are all originalists" or "originalism and living constitutionalism are compatible" or even "originalism is trivially true.  Contemporary debates about originalism sometimes use the label, "the New Originalism" to distinguish the current emphasis on "original public meaning" from older forms of originalism that emphasized "original intentions."  The story of that transition is crucial to understanding the current discussion among constitutional theorists.

Original Intentions

Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.

Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article,The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating, if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.

Original Public Meaning

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates andFederalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways. For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism "comptibilism," but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Regime Theory

Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.

Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.

Does Originalism Have a Core?  

Originalism continues to evolve, and the lines of development sometimes converge, but it is fair to observe that originalism in the early years of the twenty-first century has several variations.  "Original public meaning" is one focal point, and the distinction between "interpretation" and "construction" has gained widespread traction, but there are many points upon which originalists disagree.  This leads to the question: does originalism have a core?  One answer to this question focuses on the distinction between two dimensions of the debate about originalism.  The first dimension is semantic: the semantic dimension of controversies about constitutional interpretation addresses the question, "What is the meaning of the constitutional text?"  The second dimensions isnormative: the normative dimension of debates about constitutional practice addresses the question: "How should constitutional actors (judges, other officials, and citizens) act once the meaning of the constitution has been determined?"  If there is any core to contemporary originalism, it focuses on the semantic dimension.  Almost all originalists agree that the semantic content of a given constitutional provision was fixed during the period of drafting and ratification.  Some originalists believe that original intentions fixed the meaning; most contemporary originalists believe that "original public meaning" or "conventional semantic meaning" fixed the content.  But (so far as I know) almost every originalist theorist would agree that the "linguistic meaning" or "semantic content" of a constitutional provision does not change.

The point made in the prior paragraph can easily be misunderstood.  New originalists who embrace the distinction between construction and interpretation concede that the meaning of some constitutional provisions is vague, and therefore that these provisions require construction that goes beyond translation of the meaning of the text into legal doctrine.  The core commitment of originalism to fixed semantic content does not entail fixed constructions.  For example, it might be the case that the key phrases that define the constitutional seperation of powers, "judicial power," "executive power," and "legislative power," have an original public meaning that was vague.  Given this vagueness, much of the important work required to resolve a dispute about the application of these phrases must be done by constitutional construction.  This means that originalists who share the core commitment to the idea that meaning was fixed by 1789 when the Constitution was ratified may disagree about the proper method of construction of the separation of powers provisions.

Originalists disagree about other important questions as well.  In particular, there is no consensus among originalists about the normative justifications for fidelity to the original meaning.  Some originalists belive that originalism is normatively justified by popular sovereignty theory: we should adhere to the original meaning because it was ratified by "We the People."  Other originalists, like Randy Barnett, argue that the legitimacy of the Constitution is a function of the justice of its content.  And yet other originalists have argued that adherence to original meaning is justified by the rule of law values of predictability, certainty, and stability.  These disagreements about normative foundations may lead to further disagreements about the extent to which "original meaning" should trump other considerations.  For example, should constitutional actors alwaysadhere to original meaning when it conflicts with historical practice or judicial precedent?

Originalism and Precedent

We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Some originalists have argued that as a general rule, constitutional actors should follow original meaning, even if it would conflict with longstanding historical practice or settled precedent.  Other originalists argue that precedent and/or historical practice can trump original meaning in specified circumstances.  Among originalist judges, Justice Scalia has sometimes argued that precedent trumps original meaning, whereas Justice Thomas seems to be more willing to upset precedent that is inconsistent with originalism.

The New Critics of the New Originalism 

The most recent installment in debates over the new originalism has been the emergence of a recent body of work that criticizes the new originalism.  This work includes "Rebooting Originalism" by Stephen Griffin, "Originalism is Bunk" by Mitch Berman, and "Originalism's Living Constitutionalism," by Thomas Colby and Peter Smith.  The distinctive feature of the new criticism is that it takes into account, in various ways, originalisms shift from intentions to public meanings.

Conclusion  

This entry in the Legal Theory Lexicon is both too long and too short.  Too long, because I strive to make Lexicon entries sufficiently brief so that they can be read in just a few minutes.  Too short, because the convulated terrain of the originalism debates can only be fully mapped (much less argued out) in a very long article.  Nonetheless, I hope that I have provided enough background for a beginning student of constitutional law to get a sense of the lay of the land.  Debates about the new originalism are at the center of contemporary constitutional theory, but the long and twisted history of those debates makes it difficult to get started without a guide.

Related Lexicon Entries

• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 063: Interpretation and Construction

Bibliography

This very selective bibliography includes some of the articles that have been influential in the ongoing debates over originalism.

• Bruce Ackerman, We the People: Foundations (Harvard University Press 1991) & We the People: Transformations (Harvard University Press 1998).
• Randy Barnett, An Originalism for Nonoriginalists, 45 Loyola Law Review 611 (1999) &Restoring the Lost Constitution (Princeton University Press 2004).
• Raoul Berger, Government by Judicary (Harvard University Press 1977).
• Robert Bork, The Tempting of America (Vintage 1991).
• Paul Brest, The Misconceived Quest for the Original Understanding, 60 Boston University Law Review 204 (1980).
• Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of the Constitution, 72 Iowa L. Rev. 1177 (1987).
• Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Northwestern Univeristy Law Review 226 (1988).
• Gary Lawson, Proving the Law, 86 NW. U. L. REV. 859, 875 (1992).
• Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).
• Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989)
• Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997)
• Antonin Scalia, Speech Before the Attorney General's Conference on Economic Liberties (June 14, 1986). in Office of Legal Policy, Original Meaning Jurisprudence: A Sourcebook 106 (U.S. Dept. of Justice 1987)
• Lawrence Solum, Originalism as Transformative Politics, 63 Tulane Law Review 1599 (1989).
• Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas 1999) & Constitutional Construction: Divided Power and Constitutional Meaning (Harvard University Press 2001).
• Originalism: A Quarter Century of Debate (Stephen G. Calabresi ed., Regnery Press 2007).

Papers Online

• Jack Balkin, Abortion and Original Meaning
• Jack Balkin, Original Meaning and Constitutional Redemption
• Randy E. Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, Underlying Principles & An Originalism for Nonoriginalists
• Mitchell Berman, Originalism is Bunk
• Emily C. Cumberland, Originalism, in a Nutshell
• Thomas Colby & Peter Smith, Originalism's Living Constitutionalism
• Stephen Griffin, Rebooting Originalism
• John O. McGinnis and Michael B. Rappaport, A Pragmatic Defense of Originalism
• Lawrence Solum, Originalism as Transformative Politics
• Lawrence Solum, Semantic Originalism
• Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights
• Lawrence Solum, District of Columbia v. Heller and Originalism.

(This entry was last revised on February 19, 2012.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends Soft Law and the Global Financial System: Rule Making in the 21st Century by Chris Brummer. Here is a description:

The global financial crisis of 2008 has given way to a proliferation of international agreements aimed at strengthening the prudential oversight and supervision of financial market participants. Yet how these rules operate is not well understood. Because international financial rules are expressed through informal, non-binding accords, scholars tend to view them as either weak treaty substitutes, or by-products of national power. Rarely, if ever, are they cast as independent variables that can inform the behavior of regulators and market participants alike. This book explains how international financial law "works" - and presents an alternative theory for understanding its purpose, operation, and limitations. Drawing on a close institutional analysis of the post-crisis financial architecture, it argues that international financial law is often bolstered by a range of reputational, market, and institutional mechanisms that make it more coercive than classical theories of international law predict. As such, it is a powerful, though at times imperfect tool of financial diplomacy, and poses novel opportunities and challenges for the evolving global economic order.

Download of the Week

The Download of the Week is Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon by Keith E. Whittington & Amanda Rinderle. Here is the abstract:

How important was Marbury v. Madison in American constitutional history? This article examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century. In doing so, it reveals the process by which historical memories are constructed and adds to our understanding about the diverse sources of judicial review in the early republic and the rhetoric of judicial authority.

Highly recommended. Download it while its hot!