Legal Theory Blog

Schilt on Legal Scholarship in the Blogosphere

On Law.com, Margaret Schilt has Is the Future of Legal Scholarship in the Blogosphere?. Here is a taste:

Who are the bloggers? The uninitiated might think they would be young professors, those who have grown up with the Internet and are comfortable with self-publication in that format. While there are some of those, the legal blogosphere tends to be populated by midcareer professors who have tenure, are intimately familiar with traditional legal scholarship and see the Internet as a way to reach more readers in a less ritualized format.

Younger scholars, in contrast, debate whether blogging is worth the time taken away from traditional legal scholarship, still necessary for achieving tenure. Tung Yin and Christine Hurt, in an article called "Blogging While Untenured and Other Extreme Sports," write, "Conventional wisdom seems to warn that blogging may be a risky venture for those academic bloggers who have not been awarded tenure and the liberating academic freedom that comes with that award." You may inadvertently offend someone important, you may be -- gasp! -- wrong or you may simply be lured into spending too much time blogging and not enough time creating scholarship and knowledge in the more traditional forms. Blogging, in short, can be addictive. Regular posting to maintain the dialogue and interchange that leads to readership drains time from other pursuits.

Why, then, spend the time? One answer is that a blog reaches far more readers than traditional scholarship. Eugene Volokh said in 2006 that his blog gets about 20,000 unique visitors a day. Readers of traditional law review articles are not counted, but, he says, he's pretty sure that number is very far from 20,000.

Choi, Gulati, and Posner on the Empirical Case for an Elected Judiciary

Stephen J. Choi (New York University - School of Law), G. Mitu Gulati (Duke University - School of Law), and Eric A. Posner (University of Chicago Law School; University of Chicago Press ) have posted Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary on SSRN.  Here is the abstract:

Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

And a bit more from the paper:

The literature [on judicial behavior], taken as a whole, provides evidence that selection and retention institutions influence judicial outcomes—by influencing who becomes a judge, or how judges decide cases, or both. The literature also confirms that judges are influenced by political factors. The literature largely skirts our topic—whether elected judges are, overall, better or worse than appointed judges—but offers tantalizing hints. The Tabarrok & Helland studies imply that elected judges are better agents of their constituents than are appointed judges; the social problem they identify is due to the federal structure of the country and the overlapping jurisdictions of states. Hanssen’s (1999) finding that electoral pressures force state judges to be more consistent implies that elected judges are better—more consistent opinions, all else equal, are better than inconsistent opinions. Berkowitz & Clay (2006) do use a measure of overall judicial quality based on the views of senior attorneys at wealthy companies, but, as they acknowledge (pp. 412–13), the views of these senior attorneys are hardly unbiased. Landes & Posner’s (1980) study is closest to ours, but they do not look at productivity and independence, and their study has several methodological limitations.6 Our results are quite different from theirs.

Following the literature, we envision the relationship between the public and the judiciary as an agency relationship. The optimal selection mechanism minimizes agency costs. Judges expend unobservable effort to decide cases. Agency costs can take two forms: laziness (resulting in bad opinions or few opinions) and ideological selfindulgence (biased opinions). The optimal selection mechanism screens out judges with a strong preference for laziness or ideological self-indulgence and/or punishes judges who are observably lazy or ideologically self-indulgent.

Just a bit more:

Our independence measure focuses on the tendency of judges to write opinions that disagree with co-partisans when the pool of judges provides opportunities to do so.9 We define an “opposing opinion” as either a majority opinion when a dissent exists, or a dissent when a majority exists. We assume that a judge exhibits independence when she writes an opposing opinion against a co-partisan.

And:

The bottom line is that the data is consistent with the findings in the empirical literature that judicial opinions reflect partisan or ideological bias. However, the data does not support the received wisdom that appointed judges are more independent than electoral judges.

Supercool paper!  This does seem to move the ball forward.

Smith on the State of Jurisprudence

Steven Douglas Smith (University of San Diego School of Law) has posted Jurisprudence: Beyond Extinction? on SSRN.  Here is the abstract:

Of the various subjects of legal study, jurisprudence is the one in which the most momentous and profound questions about law are addressed, or in which, as Holmes put it, we might hope to “connect . . . with the universe and catch an echo of the infinite.” Or so we might suppose . . . but it seems we would be wrong. In recent years, at least, the questions addressed under the headings of “jurisprudence” or “philosophy of law” hold little interest for any but the purest (i.e., the most incorrigibly academic) of theorists. It is hard to resist the impression that the questions are merely semantic, and that some of the most powerful minds in the profession are amusing themselves with word play.

How to account for this peculiar state of affairs? Is jurisprudence a dinosaur that has outlived its time? This essay, written for a general-audience symposium collecting short interpretations of the state of jurisprudence today, reflects on those questions, and suggests that classic jurisprudential claims and questions have been translated into a secular vocabulary and framework that deprive them of their meaning and significance.

Highly recommended!

Fowler & Jeon on the Authority of Precedent

James H. Fowler and Sangick Jeon (University of California, San Diego - Department of Political Science and University of California, Davis) have posted The Authority of Supreme Court Precedent (Social Networks, 2007) on SSRN. Here is the abstract:

We construct the complete network of 30,288 majority opinions written by the U.S. Supreme Court and the cases they cite from 1754 to 2002 in the United States Reports. Data from this network demonstrates quantitatively the evolution of the norm of stare decisis in the 19th Century and a significant deviation from this norm by the activist Warren court. We further describe a method for creating authority scores using the network data to identify the most important Court precedents. This method yields rankings that conform closely to evaluations by legal experts, and even predicts which cases they will identify as important in the future. An analysis of these scores over time allows us to test several hypotheses about the rise and fall of precedent. We show that reversed cases tend to be much more important than other decisions, and the cases that overrule them quickly become and remain even more important as the reversed decisions decline. We also show that the Court is careful to ground overruling decisions in past precedent, and the care it exercises is increasing in the importance of the decision that is overruled. Finally, authority scores corroborate qualitative assessments of which issues and cases the Court prioritizes and how these change over time.

Goodman on Media Policy

Ellen P. Goodman (Rutgers University - Law School) has posted Media Policy and Free Speech: The First Amendment at War With Itself on SSRN.  Here is the abstract:

Two principal pillars of media policy are communications and copyright law. In each discipline, there are pluralists who seek greater public access to the means of communications (communications policy pluralists) and communicative content (copyright pluralists). Historically, communications policy pluralists have sought government interventions in the marketplace in order to increase access to mass communications. Copyright pluralists, by contrast, have fought against regulatory interventions they argue unduly strengthen the rights of copyright holders to deny access to content. In pursuing these strategies, the pluralists have used First Amendment arguments that are in tension with each other and ultimately unavailing in the courts. These arguments, drawing on the rhetoric of free speech rights and values, shortchange the complexity of free speech interests at stake when the government reallocates speech opportunities. This article argues that only by abandoning traditional First Amendment categories of review will pluralists and courts arrive at an analysis that fairly takes into account speakers' interests in controlling their speech and the public's interests in loosening that control. The article shows how reconciling communications and copyright pluralists' First Amendment positions, and developing a new First Amendment jurisprudence, becomes more important as the pluralist agenda matures to include positions on net neutrality, unlicensed spectrum, and compulsory copyright licenses.

Priester on Criminals, Enemies, and Terrorists

Benjamin J. Priester (Florida State University - College of Law) has posted Criminal Defendants and Military Enemies: Defining the Terrorist Threat on SSRN. Here is the abstract:

This paper confronts and answers the difficult definitional questions raised by the threat of Al Qaeda and other transnational terrorist organizations. Are terrorists analogous to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law? Or are they equivalent to enemy soldiers engaged in warfare against the United States? There are problems with either analogy because the threat posed by Al Qaeda and other transnational terrorist organizations has substantial differences from both paradigmatic criminal activity and paradigmatic military conflict. Thus, it is far from clear whether alleged terrorists should be treated as criminal defendants or military enemies.

The paper first approaches these questions through a direct comparison between the alternative models of U.S. federal criminal law and the international laws of war. The criminal model presents one framework for defining the threat of terrorism, primarily focused on the prosecution and punishment of individual alleged terrorists for their activities. The military model offers another framework, emphasizing the dangers posed by an organized armed force engaged in planning and carrying out acts of war. Examining each model on its own terms reveals that, in their current forms, neither model is adequate for fully addressing the nature of the threat.

The paper then argues that the solution is to combine the criminal and military models into a new, integrated model for defining the threat of Al Qaeda and other transnational terrorist organizations. The integrated model uses the insights of each model to compensate for their respective shortcomings. In doing so, it accounts for the particular dangers which exist because Al Qaeda is a form of organized armed force, and the substantial implications that holds for the nature of the terrorist threat. At the same time, it balances the importance of personal conduct and group affiliation by reserving the most substantial consequences for activities dependent on direct, personal involvement. The integrated model concludes that most individuals involved in terrorism should be treated as criminal defendants, and only the most dangerous direct participants should be deemed military enemies. Through this integrated analysis, the new model resolves the problems with the existing criminal and military models and fully addresses the threat posed by Al Qaeda and other transnational terrorist organizations.

Halliday & White on Suspension of Habeas

Paul Halliday and G. Edward White (University of Virginia - Corcoran Department of History and University of Virginia School of Law) has posted The Suspension Clause: English Text, Imperial Contexts, and American Implications on SSRN. Here is the abstract:

Since 1996, the Supreme Court of the United States has signaled that the jurisprudence of the writ of habeas corpus, and its possible suspension, should be informed by an understanding of the writ and of the Habeas Suspension Clause in the U.S. Constitution “as it existed in 1789.” This article recovers the historical basis of the Suspension Clause. It begins by exploring, in the English context, previously unexamined court archives and other manuscript sources. It then traces the path of the writ across the British Empire in the years before 1789. Finally, it analyzes early American uses of the writ, including its treatment in the Judiciary Act of 1789 and Chief Justice John Marshall's decision in Ex Parte Bollman. The article concludes that the writ's peculiar force was the product of judicial rather than statutory innovation; that judicial authority was premised on the idea that judges enacted powers peculiar to the king — his prerogative — when they used the writ; that this meant that judges focused more on the behavior of jailers rather than the rights of prisoners; that this focus gave the writ its surprisingly wide coverage as to persons and places; and that the implications of this history for current cases involving the claims of Guantanamo Bay detainees are significant.

Schauer on Precedent & Analogy

Frederick Schauer (Harvard University - John F. Kennedy School of Government) has posted Why Precedent in Law (and Elsewhere) is Not Totally (or Even Substantially) About Analogy on SSRN.  Here is the abstract:

Cognitive scientists and others who do research on analogical reasoning often claim that the use of precedent in law is an application of reasoning by analogy. In fact, however, law's principle of precedent is quite different. The typical use of analogy, including the use of analogies to earlier decisions in legal argument, involves the selection of an analog from multiple candidates in order to help make the best decision now. But the legal principle of precedent requires that a prior decision be treated as binding, even if the current decision-maker disagrees with that decision. When the identity between a prior decision and the current question is obvious and inescapable, precedent thus imposes a constraint quite different from the effect of a typical argument by analogy. The importance of this is not so much in showing the a common claim in the psychological and cognitive science literature is mistaken, but that the possibility of making decisions under the constraints of binding precedent is itself an important form of decision-making that deserves to be researched in its own right.

And some more from the text:

Whereas analogical reasoners are widely understood to have a choice among various candidate source analogs, and whereas it is often argued that experts can be distinguished from novices by the way in which they retrieve their source analogs on the basis of structural rather than superficial similarities to the target (Gentner, 1983; Gentner, Rattermann, & Forbus, 1993; Holyoak & Koh, 1987), such freedom is ordinarily absent with respect to constraint by precedent. Justice Stewart would have thought bizarre the suggestion that finding another earlier case could let him avoid the constraints of Griswold, just as Justice White would surely have laughed at the idea that feeling constrained by Miranda was simply a function of not having selected the best source case. Although it is true that on occasion creative and effective advocates can persuade a court to see a case or an issue in an entirely new light, far more often a previous decision about issue X looms so large that it is implausible for a judge to avoid that decision by maintaining that the current case is about Y and not about X. . So although, in a very attenuated technical sense, no 2004 forest green Toyota Corolla is the same car as some other 2004 forest green Toyota Corolla, it would be peculiar to criticize one owner of such a car from saying to another owner that “I have the same car.” So too here. Any two previous cases, instances, acts, or events are in some respects different, but in reality their equation is often inescapable.

Another great paper from Schauer.  Highly recommended!  Download it while its hot!

Blocher on Institutions & the Marketplace of Ideas

Joseph Blocher (U.S. Court of Appeals for the Eleventh Circuit) has posted Institutions in the Marketplace of Ideas (Duke Law Journal, Vol. 57, 2008) on SSRN. Here is the abstract:

If any area of constitutional law has been defined by a metaphor, the First Amendment is the area, and the “marketplace of ideas” is the metaphor. Ever since Justice Holmes invoked the concept in his Abrams dissent, academic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail. But as with the free market for goods and services, there are discontents who point to the market failures that make the marketplace metaphor aspirational at best, and inequitable at worst.

Defenders of the free economic market have responded to these criticisms by developing a thicker understanding of how the market actually functions. Their most successful model is the New Institutional Economics (NIE), which incorporates and explains the transaction costs and institutions that populate and effectively regulate that market. The marketplace of ideas model, however, remains faithfully wedded to a neoclassical view of the market that depends on a perfectly costless and efficient exchange of ideas. It is thus vulnerable to the same criticisms economists answered decades ago, and it fails to take into account the rich view of market mechanisms and institutions they have developed since. In recent years, First Amendment scholars led by Frederick Schauer laid the groundwork for a solution by describing an “Institutional First Amendment” that would accord special treatment to certain institutions like schools and the press.

But just as the marketplace of ideas fails to account for institutions, the Institutional First Amendment fails to account for the marketplace of ideas. As it turns out, the two theories are not only reconcilable, but complementary. This Article brings them together, using the New Institutional Economics to describe the “speech institutions” - such as schools and universities - that play the same cost-reducing role in the marketplace of ideas as other institutions do in the market for goods and services. For the same reason and to the same degree as economists defer to the private norms of market-enhancing institutions, so too should courts defer to the speech rules of marketplace-of-ideas-enhancing institutions. The Article then tests the descriptive and normative validity of this “New Institutional First Amendment,” finding that it both explains and justifies much of the Court's recent school speech doctrine, including its recent ruling in Morse v. Frederick, and also justifies the special status of universities as speech institutions. By addressing the “economic” objections to the marketplace metaphor, the Article attempts to better describe, explain, and rehabilitate the marketplace of ideas.

Nice paper!

Massey on Governmental Purpose & Judicial Review

Calvin R. Massey (University of California, Hastings) has posted The Role of Governmental Purpose in Constitutional Judicial Review (South Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:

The purpose of governmental action is sometimes highly relevant to judicial determination of its constitutional validity, and sometimes completely irrelevant. Why? Even when purpose is relevant, the method of ascertaining purpose is highly variable. Why? When should governmental purpose be relevant to assessment of the constitutional validity of its action? What method should courts use to determine purpose? This article grapples with these questions by first distinguishing between purpose and motive, a distinction that the Supreme Court frequently elides, then examining what the Court has done, and proposing what the Court should do.

The Court's consideration of purpose is unguided by any discernible principle, although the stringency of the applicable level of review has some influence upon the relevance of purpose. The Court's method of determining purpose is equally unguided. Purpose is sometimes derived from statutory text, sometimes from the effects of the action, sometimes from hypothesis, and sometimes from inferences of motive, and these varying methods are largely untethered from the applicable level of review.

Although purpose inquiry is necessary to tiered scrutiny the Court should focus primarily on the effects of government action. When the chosen means are ineffective to accomplish a forbidden purpose, courts should ignore purpose, except in cases of intangible stigmatic injury or when courts are incapable of assessing effectiveness. When the effects of government action are constitutionally suspicious but no forbidden purpose is evident, courts should liberally permit challengers to offer proof of an illegitimate purpose or motive in order to sift effects that are unintended byproducts of lawful action from those that are produced by an occult bad purpose or motive. Facial challenges should always involve scrutiny of purpose, because the effects are generally speculative, either because such challenges are brought before implementation of the measure or it so squelches protected activity that as-applied challenges are unlikely to occur.

Within minimal scrutiny, when the effect of governmental action is divorced from the government's stated or conceivable purposes, the action should be treated as irrational. Within heightened scrutiny courts should consider purpose with greater care, examining the face of the statute or its application for evidence of a forbidden purpose. Evidence of legislative motive should be used quite sparingly, if at all, due to the extreme difficulty of identifying a singular motive for the action of a deliberative body.

This proposal implies that a number of areas of constitutional doctrine should be reconsidered or abandoned. Aspects of free expression, equal protection, substantive due process, and the religion clauses are called into question. The author hopes to spark debate on these matters, rather than offer the final word.