Legal Theory Blog

Legal Theory Bookworm The Legal

Legal Theory Bookworm The Legal Theory Bookworm recommends Brennan and Democracy by Frank Michelman. I take special pleasure in this recommendation, both because Michelman was my contracts professor (along with Lea Brilmayer, creating a real "odd couple" experience) and because he is surely one of the most intelligent and thoughtful constitutional theorists of our time. Here is a blurb:

In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.

The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal.

Highly recommended!

Download of the Week The

Download of the Week The Download of the Week is The Art of Reading LOCHNER by Rebecca L. Brown. Here is the abstract:

This essay argues that the Repudiation of Lochner v. New York is an event that has been cloaked in mystique and power, the very uncertainty of which has led to a kind of paralysis in the realization of constitutional aspiration. Yet because of its largely incorporeal nature, the meaning and implications of this important event have largely eluded focused critique and reevaluation. Those with a mind to question or rethink the Repudiation have focused their efforts primarily on revisionist accounts of Lochner itself. These are helpful in highlighting the possible meanings of the Repudiation, not descriptively, but normatively. They invite us to think about what we wish to consider ourselves to have repudiated with Lochner - a question that has, incredibly, not been adequately debated.

And here is a bit more from the article:

Generally speaking the Repudiation is understood to have declared that what the Court in Lochner did was triply wrong: (A) it was incorrect as constitutional doctrine; (B) it was illegitimate as judicial behavior; and (C) it was fueled by inappropriate motivations. Although separable, the three prongs of this devil’s trident are not unrelated. The doctrinal error lay in recognizing a right to liberty of contract not specified in the text of the Constitution. The illegitimacy charge is the most complicated of the attacks on Lochner. Depending on the critic, the decision was illegitimate (not simply wrong) because the Court xceeded the proper scope of judicial authority by placing itself into the role of egislator or policy-maker,9 or because the content of the rights recognized under he Court’s due process formulations was too “meaningless and circular” to be pplied in a principled manner.10 Another version of the illegitimacy critique puts ctivism at the top of the list of sins, either alone or in combination with other eatures of Lochner, such as lack of firm textual basis or activism based on what ight be said to be legislative, rather than judicial, judgments. The critique from otivation attributes the errors of doctrine and legitimacy to the Court’s eactionary resistance to progressive “social legislation designed to relieve nequalities in the industrial marketplace.” 11 Perhaps the most damning of all, his charge brands the justices as unprincipled ideologues who turned their policy references into constitutional law.

And finally:

In a representative democracy, where much power is placed in the hands of lawmakers answerable to many different constituencies, generality of law (an idea sounding in equality) is an essential safeguard for liberty. This explains why Pierce v. Society of Sisters and Meyer v. Nebraska survived the Repudiation, despite their otherwise discredited recognition of substantive content in due process, their own facts exemplifying better than any hypothetical how threats to equality are threats to liberty, and vice versa. It explains why judicial review limited to representation einforcement alone, an effort to use courts in the protection of equality but not iberty, is doomed to under-enforce constitutional justice without some injection of ubstantive obligations in the duty to represent. Lochner has provided a focal oint for a discussion of liberty and equality.

Thus understood, the lliterative “Lochner,” long linked to legacies, lessons, laissez-faire, iberty, and labor law, has a new comrade, propitiously entitled Lawrence. lthough thirty years ago a leading scholar complained that “Lochner and Roe are twins,” the distinction of a strong family resemblance to Lochner belongs to Lawrence. This observation is cause, not for complaint, but for celebration that the wo strands of constitutional justice, liberty and equality, intertwined in Lochner and then rent asunder by decades of constitutional angst at the hands of the Repudiation, have been permitted to come together again in the law of the land.

Highly recommended!

Friday CalendarDerek Jinks, U. of

Friday Calendar

Derek Jinks, U. of Arizona School of Law, "Reciprocity and the Laws of War".
University of Texas, School of Law: David Blight, Yale University, Department of History, "The Theft of Lincoln in Scholarship and in Public Memory".
Vanderbilt Legal Theory Workshop: David Dana, Northwestern University Law School, "Adequacy of Representation after Stephenson".
Northwestern University School of Law: Law and Positive Political Theory Conference: Legal Doctrine and Political Control, Day 1
10:00–11:45am, Session 1
• Charles Cameron and Lewis Kornhauser, “A Team Model of Appellate Law Creation” • Paul Rubin, Hugo Mialon, and Joel Schrag, “Judicial Hierarchies and the Rule-Individual Tradeoff.” • Tonja Jacobi and Emerson Tiller, “Legal Doctrine and Political Control.” Discussants: Eric Posner Rui de Figueiredo Mathew McCubbins
1:15-3:00pm, Session 2
• Lee Epstein, Charles Cameron, Andrew Martin, and Jeff Segal, “Strategic Defiance of the U.S. Supreme Court” • Tracey George and Jeffrey Berger, "From Defense to Offense: A Revised Strategic Account of Appellate Judging" • Joseph Smith, “Distributing Power by Deciding Cases: Explaining Supreme Court Deference to Administrative Action” Discussants: John de Figueiredo Christopher Zorn Max Schanzenbach
3:30pm-4:45pm, Session 3
• Eric Talley, “Equilibrium Expectations and Legal Doctrine” • Jide Nzelibe, “A Positive Theory of the War Powers Constitution” Discussants: Lewis Kornhauser John McGinnis

Zipursky on Punitive Damages Benjamin

Zipursky on Punitive Damages Benjamin C. Zipursky (Fordham University School of Law) has posted A Theory of Punitive Damages (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of imposing a punishment upon a defendant who merits deterrence or retribution, they have a criminal aspect. Insofar as they pertain to the plaintiff's "right to be punitive," they have a civil aspect. Drawing upon the theory of civil recourse that the author has developed as a challenger to corrective justice theory, the article explains what a "right to be punitive" means. It then uses the recourse theory of punitive damages to support a rational reconstruction of the Supreme Court's constitutional jurisprudence of punitive damages. When a case can be understood as involving principally a plaintiff's right to be punitive, heightened constitutional scrutiny is not appropriate. However where, as in BMW v. Gore, the state is essentially imposing punishment, the excessiveness of a damages award is properly scrutinized under heightened constitutional standards.

Wuerth on Authorizations for the

Wuerth on Authorizations for the Use of Force Ingrid B. Wuerth (University of Cincinnati - College of Law) has posted Authorizations For the Use of Force, International Law, and The Charming Betsy Canon (Boston College Law Review, Vol. 42-6, 2005) on SSRN. Here is the abstract:

International law has figured prominently in several on-going disputes around actions of the U.S. military in Afghanistan, Iraq, Guantanamo, and here in the United States, but the precise relationship between international law and President's war powers has nonetheless gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorization for the use of force. Recent cases, including Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), have confirmed the importance of congressional authorization to the Court's construction of the President's war powers. International law can, in turn, play an important role in how courts interpret the scope of general authorizations for the use of force by Congress. The plurality opinion in Hamdi illustrates this point, but unfortunately relies on international norms without sufficient attention to their content or their relationship to the authorization provided by Congress. This article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the so-called Charming Betsy canon, does a good job of maximizing the presumed preferences of Congress, advances separation of powers in a number of ways, and promotes several normative values that favor the use of international law as an interpretive tool.

Brandser on Victorian Censorship &

Brandser on Victorian Censorship & Birth Control Kristin Brandser (University of Cincinnati - College of Law) has posted Law, Literature, and Libel: Victorian Censorship of 'Dirty Filty' Books on Birth Control (William & Mary Journal of Women and the Law, Vol. 10, p. 533, 2004) on SSRN. Here is the abstract:

This article considers the increasing challenge of the fair allocation of scarce public health care resources by focusing on services for women and girls. It considers different ways of thinking about fairness in health care reform, the role of courts in promoting fairness, and the use of affirmative action measures to remedy health disparities. The health of individuals and populations is shown to be affected by clinical services, the organization and functioning of health systems, and underlying socio-economic determinants. Different theories of justice are addressed that affect assessments of fairness, considering availability, accessibility, acceptability of and accountability for services. The transition in judicial dispositions is traced, from deference to governmental resource allocation decisions to evidence-based scrutiny of governmental observance of constitutional and human rights legal obligations. The appropriate use of affirmative action measures to improve equality in health status is explored, given the increasingly unacceptable disparities in health among subgroups of women within countries.

Ahdieh on Norm Transformation Robert

Ahdieh on Norm Transformation Robert B. Ahdieh (Emory University School of Law) has posted The Role of Groups in Norm Transformation: A Dramatic Sketch, In Three Parts (Chicago Journal of International Law, Vol. 6, No. 1, p. 233, 2005) on SSRN. Here is the abstract:

Legal scholars, as well as economists, have focused limited attention on the role of coordinated groups of market participants - committees, clubs, associations, and the like - in social ordering generally and in the evolution of norms particularly. One might trace this neglect to some presumptive orientation to state actors (expressive law) and autonomous individuals (norm entrepreneurs) as the sole parties of interest in social change. Yet, alternative stories of social ordering and norm change might also be told. Dramatic recent changes in the contracting practices of the sovereign debt markets offer one such story.

Using the latter by way of illustration, this essay explores the potential role of groups as mechanisms of norm transformation. In appropriate circumstances, it suggests, groups may offer an intermediate path of change between regulatory mandate and decentralized markets. Where a pattern of private behavior is at once inefficient but resistant to decentralized market change, groups may effectively stand in for the market - relying on private rather than public incentives to define outcomes, yet offering an infrastructure of coordination lacking in a pure market dynamic. Building on this conception, the essay offers a potential framework for the analysis of groups - as market substitutes in their internal dynamics, as market-mediating in their external interactions, and, most counter-intuitively, as contributing to norm change not exclusively through their strength, but also through their weakness.

Cook on Fairness in Health

Cook on Fairness in Health Care Reform Rebecca J. Cook (University of Toronto - Faculty of Law) has posted Exploring Fairness in Health Care Reform (Journal for Juridical Science Vol. 29, No. 3, pp. 1-27, 2004) on SSRN. Here is the abstract:

This article considers the increasing challenge of the fair allocation of scarce public health care resources by focusing on services for women and girls. It considers different ways of thinking about fairness in health care reform, the role of courts in promoting fairness, and the use of affirmative action measures to remedy health disparities. The health of individuals and populations is shown to be affected by clinical services, the organization and functioning of health systems, and underlying socio-economic determinants. Different theories of justice are addressed that affect assessments of fairness, considering availability, accessibility, acceptability of and accountability for services. The transition in judicial dispositions is traced, from deference to governmental resource allocation decisions to evidence-based scrutiny of governmental observance of constitutional and human rights legal obligations. The appropriate use of affirmative action measures to improve equality in health status is explored, given the increasingly unacceptable disparities in health among subgroups of women within countries.

Brown on Dworking & Constitutional

Brown on Dworking & Constitutional Theory Rebecca L. Brown (Vanderbilt Law School) has posted How Constitutional Theory Found Its Soul: The Contributions of Ronald Dworkin (EXPLORING LAW'S EMPIRE, Oxford University Press, 2005) on SSRN. Here is the abstract:

Like rain falling to a parched earth, Ronald Dworkin's early work lighted upon a field of constitutional thought desiccated by embarrassment over Brown v. Board of Education. From a distance of a half century, it is difficult to appreciate the profound chagrin that had arisen from what now seems a simple judicial declaration of equality. Yet the decision had hurled the world of constitutional theory into decades of existential angst, leading it, temporarily, to lose a grasp on its soul.

This essay explores some ways in which Dworkin's frank discussion of rights as well as his thick notion of equality helped restore optimism and aspiration to the constitutional project when it was in dire need of uplifting. It also traces effects of Dworkin's work in some of the constitutional decisions of the Supreme Court.

Conference Announcement: Nature in the

Conference Announcement: Nature in the Kingdom of Ends

NATURE IN THE KINGDOM OF ENDS Where are we taking nature? Were is nature taking us? A Conference in Selfoss, Iceland, June 11th and 12th 2005

Respecting others for what they are rather than treating them simply as instruments is one of the fundamentals of human morality. The philosopher Immanuel Kant expressed this in the following words: “Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means”. And sometimes Kant says that rational beings are citizens in the kingdom of ends. But why only rational beings? The title “Nature in the Kingdom of Ends” indicates that nature should also belong to the kingdom of ends, that it is deserving of respect and that one should never treat it simply as a means but always also as an end.

The object of the conference is to consider the
place of nature in the contemporary world and its appearances
in different aspects of human life.

When we ask about sources of values, we are asking questions about the basic frames which we set for our lives; the surroundings in which we live, the projects that we undertake, and the goals we set ourselves. Here we find the roots of ethics and art.

Ecological crises, climatic changes, and natural catastrophes have made us increasingly aware of the place of man, as a living creature, in a fragile natural environment which constrains human life in various ways. But, at the same time, nature has appeared as a source of values opening up new ways for creative and meaningful life. This status of nature is reflected in new trends in art and ethics.

Culture – art – nature
Complex relations between art and nature are one of the characteristics of contemporary art. The distinction between art and nature has become increasingly blurred at the same time as the ancient dichotomy of culture and nature has become controversial. It is the inner space, the interstices between disciplines, the challenging discourse between the triple, culture – art – nature, that has become a locus, a place for creative richness, that has generated some of the most exciting artworks created during the last decades.

Ethics
Ideas about the proper object of moral philosophy underwent radical changes in the last decades of the 20th century. Philosophers began discussing nature as an independent source of moral values, rather than a mere stage for moral life which, in the end, derives its value from relations between humans.

Nature and modernity
The new circumstances of art and ethics have forced us to recognize the dual nature of humans as natural and cultural creatures. We are forced to look at humans as a unified whole with these two sides, which often conflict.