Legal Theory Blog

Legal Theory Bookworm The Legal

Legal Theory Bookworm The Legal Theory Bookworm recommends Arguing Marbury V. Madison, edited by Mark V. Tushnet. Here is a blurb:

Marbury v. Madison, decided in 1803, is the foundation stone of the American doctrine of judicial review. Remarkably, the case was decided without the parties having presented an oral argument to the Supreme Court. This book begins with a unique transcript of an oral argument in the case, conducted before a bench of four distinguished federal judges. The transcript is followed by essays on Marbury’s intellectual background, its significance in U.S. constitutional history, and the way in which we might think of constitutional theory and judicial review in terms sensitive to the historical and political contexts in which the practice persists. Distinguished commentators question some of the claims made in the essays, and offer their own perspectives on Marbury’s importance.

The contributors include: David Strauss, Suzanna Sherry, Susan Low Bloch, Barry Friedman, Douglas Reed, Stephen Griffin, Vicki Jackson, Louis Seidman, and Mark Tushnet.

Download of the Week The

Download of the Week The Download of the Week is James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment by Kurt Lash. Here is the abstract:

It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual hook for this rule of strict construction has been the Tenth Amendment.

The Court's reliance on the Tenth Amendment has been the source of unrelenting scholarly criticism, particularly because the amendment itself literally does nothing more than announce a mere "truism": Those powers not delegated are reserved. It says nothing about whether delegated powers are to be broadly or strictly construed. As I have written in two previous articles, Founders such as James Madison believed that the Ninth Amendment, not the Tenth, established a rule of strict construction. In this article, I address how it came to pass that the Tenth Amendment, and not the Ninth, became accepted as an independent rule of strict construction. Ironically, it was Madison himself who drafted the document that would establish the Tenth Amendment as the primary guarantor of constitutional federalism. Madison's 1800 "Report on the Virginia Resolutions" denounced the Alien and Sedition Acts as exceeding Congress's enumerated powers and thus intruded upon the retained rights of the states in violation of the Tenth Amendment. His Report became a canonical document in the 19th century states' rights movement and transformed the Tenth Amendment into a symbolic declaration of limited federal power.

Download it while its hot!

Friday CalendarSt Anne's College, Oxford:

Friday Calendar

St Anne's College, Oxford: Ed Flippen, "US Electricity Deregulation after California, Enron and the Worst Blackout in US History"
Oxford Centre for Competition Law & Policy: Edward Flippen, US Electric Deregulation after California, Enron, and the Worst Blackout in US History

Ristroph on Proportionality as Limit

Ristroph on Proportionality as Limit on Government Power Alice Ristroph (University of Utah - S.J. Quinney College of Law) has posted Proportionality as a Principle of Limited Government (Duke Law Journal, Vol. 55, 2005) on SSRN. Here is the abstract:

This article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory-an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in liberty and equality, restrict the pursuit of penological goals. Principles of proportionality put the limits into any theory of limited government, and proportionality in the sentencing context is just one instance of these limitations on state power. This understanding of proportionality gives reason to doubt the assertion that determinations of proportionality are necessarily best left to legislatures. In doctrinal contexts other than criminal sentencing, proportionality is frequently used as a mechanism of judicial review to prevent legislative encroachments on individual rights and other exercises of excessive power. In the criminal sentencing context, we should recognize a constitutional proportionality requirement as a limit on penal power.

Nicolas on the Number of

Nicolas on the Number of Justices on the Supreme Court Peter Nicolas (University of Washington School of Law) has posted Nine, of Course: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court (New York University Journal of Law & Liberty, Forthcoming) on SSRN. Here is the abstract:

In this article, I hypothesize that 28 U.S.C. Section 1, which sets the number of justices on the United States Supreme Court at nine, is not a constitutionally valid exercise of congressional power. Rather, I theorize, under the design of the Constitution, the number of justices on the Supreme Court at any given time will vary depending on the number of justices the President chooses to nominate and how many of those, if any, members of the Senate opt to confirm.

In the manuscript, I consider and reject potential sources of congressional power to enact the statute, including the Necessary and Proper Clause of Article I and the Regulations Clause of Article III. I then consider how the constitutionality of the statute would be determined, including who would have standing to bring a challenge. Finally, I examine the consequences of my hypothesis.

Piomelli on Collaborative Lawyering Ascanio

Piomelli on Collaborative Lawyering Ascanio Piomelli (University of California, Hastings College of the Law) has posted The Democratic Roots of Collaborative Lawyering on SSRN. Here is the abstract:

This Article reinterprets collaborative lawyering - and its call for progressive lawyers to collaborate with clients and communities to jointly pursue social change - as part of a participatory democratic tradition of active self-government by engaged citizens. Rejecting conventional views that collaborative lawyering primarily grows out of postmodernist social theory, the Article details this lawyering's deep affinity with John Dewey's modern recasting of Athenian and Jeffersonian ideas and with the early 1960s' practice of Ella Baker, the Student Non-Violent Coordinating Committee, and New Left activists. It argues that a democratic lens reveals the distinctive values underlying collaborative lawyers' commitment to ordinary citizens' robust participation in collective efforts to reshape society - values that are at odds with competing visions of democracy and lawyering that place expert professionals at the center of such efforts.

French on the Problem of

French on the Problem of the Future Susan Fletcher French (University of California, Los Angeles - School of Law) has posted Perpetual Trusts, Conservation Servitudes, and the Problem of the Future on SSRN. Here is the abstract:

This short article explores the similarities between perpetual private trusts and conservation servitudes granted in perpetuity, the adequacy of existing doctrines to handle future changes in circumstances, the deference due to donor intent, and concludes that legal changes will be needed to give private trust beneficiaries more power to determine how trust assets will be used and to protect the public interests in conservation servitudes and the continuing utility of the land subject to them.

Symposium Announcement: International Law &

Symposium Announcement: International Law & the State of the Constitution at Columbia

International Law and the State of the Constitution New York City, February 24-25, 2006 25th Annual Federalist Society Student Symposium

Columbia Law School is honored to be hosting this year's symposium on its 25th anniversary. We join a tradition of symposia dedicated to exploring the most pressing and important issues in law and public policy. We have chosen the topic of international law, broadly defined, for this year's symposium, and we are certain it will provide a fantastic set of panels and debates.

International law has dominated the Supreme Court's docket in recent terms in two distinct, but related, forms. The first involves issues that are inherently international in nature—for example the power of the Executive, and protections offered by the Constitution in the war on terror—where the Court has always struggled with its role in the international realm. The second involves the increasing frequency with which the Court involves international law in its decisions in ways it historically has not. The use of foreign sources in the interpretation of the Constitution is the most pressing concern voiced by conservative jurists, and continues to provoke controversy when it is employed to defend reversal of settled U.S. law.

This year's symposium will address the various applications of both of these concerns. We have invited the most accomplished professors and jurists from a variety of points on the ideological spectrum to deliver insight into these important questions. We hope you will join us in New York City on Friday and Saturday, February 24-25, 2006.

The speakers include


Judge Frank Easterbrook, 7th Circuit Court of Appeals

Judge Dennis Jacobs, 2nd Circuit Court of Appeals

Judge Alex Kozinski, 9th Circuit Court of Appeals

Judge William H. Pryor, 11th Circuit Court of Appeals

Judge A. Raymond Randolph, DC Circuit Court of Appeals

Dean Alex Aleinikoff, Georgetown University Law Center

Professor Akhil Amar, Yale Law School

Professor Curtis Bradley, Duke University School of Law

Professor Steven Calabresi, Northwestern University Law School

Professor Lori Damrosch, Columbia Law School

Professor Martin Flaherty, Fordham Law School

Professor Thomas Franck, New York University Law School

Professor Vicki Jackson, Georgetown University Law Center

Professor John McGinnis, Northwestern University Law School

Professor Thomas W. Merrill, Columbia Law School

Professor Gerald Neuman, Columbia Law School

Professor Catherine Powell, Fordham Law School

Professor Jeremy Rabkin, Cornell University

Professor Michael Ramsey, University of San Diego Law School

Professor Jeremy Waldron, Columbia Law School

Professor Ruth Wedgewood, Johns Hopkins University

Professor John Yoo, Boalt Hall (UC Berkeley) School of Law

Thursday CalendarOxford Jurisprudence Discussion Group:

Thursday Calendar

Oxford Jurisprudence Discussion Group: Josep Lluís Martí Marmol, The Epistemic Conception of Deliberative Democracy Defended
Oxford Public International Law Discussion Group: Thomas Skouteris, 'The New Tribunalism': Liberal Sensibilities in the Age of Adjudication
Oxford Financial Law Discussion Group: Professor Niamh Moloney, "The Hedge Fund Challenge as a Test Case for EC Securities Regulation"
University College, London, Centre for Law and the Environment and the Journal of Environmental Law: The Hon. Sir Francis Jacobs, ‘The European Court of Justice and the Environment: What Role for the Court in a Global Drama?’
University College, London, Current Legal Problems Lecture: Professor Jeremy Phillips (UCL), ‘How to Win at Monopoly: Applying Game Theory to the Enforcement of Intellectual Property Rights’

Thanksgiving This Thanksgiving, I would

Thanksgiving This Thanksgiving, I would like to thank the many teachers and mentors who have enabled and enriched my life as teacher, scholar, and thinker.

Thanks to Mr. Chevalier of Repetto School in Monterey Park, my home room teacher in seventh grade--the first of many teachers who made learning an adventure rather than a chore.
Thanks to Congressman Brad Sherman, my best friend in 8th grade, who convinced me to join the Mark Keppel High School Debate Team.
Thanks to Jewel Bridges, my high school debate coach, who really had no idea what to do with me.
Thanks to Marilyn Young, who played a recording of Larry Tribe in the final round of the college national debate championships. At age 14, when I learned that Tribe was then a young professor at Harvard Law School, I decided that I wanted to be a law professor--a lucky if somewhat improbable dream.
Thanks to Mr. Katz, my high school American History teacher, who had 16 and 17 year olds reading classic articles from history and political science about constitutional history. I took it for granted.
Thanks to Geoff Goodman, Dennis Winston, and King Schofield, to John DeBross, John Wallen, and Lee Garrison, to Donn Parson, David Zarefsky, James Unger, and Lee Polk, to Jay Hurst and David Kent, and many many others on the "national circuit." I learned so much.
Thanks to Rogers Albritton--the best teacher I've ever had.
Thanks to Warren Quinn, Gregory Kavka, and Jean Hampton. Warren, Greg, and Jean were extraordinary philosophers, associated with the UCLA philosophy department in the late 70s and early 80s. All three are now gone, long before their times. Each of them encouraged me when I needed encouragement.
Thanks to Philippa Foot--I use something I learned from Philippa almost every day of my professional life.
Thanks to John Rawls, who was generous beyond all reason. He set the standard to which I aspire.
Thanks to Frank Michelman and Lea Brilmayer. First year contracts: Lea taught the first semester; Frank taught the second. Perhaps some of my readers will be able to guess that there was quite a contrast. Ex ante versus ex post, anyone?
Thanks to Andy Kaufman, Charles Nesson, Charles Fried, Roberto Unger, Lloyd Weinreb, Louis Kaplow, Arthur Miller, and David Westfall. Most especially, thanks to Steve Marzen, from whom I learned the law.
And to Archibald Cox--who single-nandedly provided a window into what was best about legal education in another era.

Best wishes for a joyous Thanksgiving! And thank you for reading!