Legal Theory Blog

Sundby on McCleskey v. Kemp

Scott E. Sundby (University of Miami School of Law) has posted The Loss of Constitutional Faith: McClesky v. Kemp and the Dark Side of Procedure on SSRN. Here is the abstract:

Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values. This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism. What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty. McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.

Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself. Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote – a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation. The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?

Ulfstein on Constitutionalism & Pluralism

Geir Ulfstein (Faculty of Law, University of Oslo) has posted The Relationship between Constitutionalism and Pluralism (Göttingen Journal of International Law, Vol. 4 No. 2) on SSRN. Here is the abstract:

International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.

Dagan on Lawmaking for Realists

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted Lawmaking for Legal Realists (Legisprudence, 2013) on SSRN. Here is the abstract:

This article provides a concise analysis of lawmaking, inspired by what I perceive to be the realist conception of law. Legal realism, as I reconstruct it, stands for the proposition that law is a going institution (or set of institutions) distinguished by the difficult accommodation of three constitutive, yet irresolvable, tensions between power and reason, science and craft, and tradition and progress. Unlike some caricatures of legal realism, this understanding of legal realism explains why the original legal realists invested time and energy in various arenas of lawmaking, shaping and reshaping the various rules and standards that are to govern society. This sustained effort reflects a mature position regarding the rule of law whereby, notwithstanding the malleability of legal doctrine as such, the social practice of law implies stable expectations as to the content of the law at any given time and place. Redrawing the line between promulgation and application along these conventionalist lines paves the way for a realist account of lawmaking. This account is likely to rely on contextual and pragmatic analyses of the pertinent issues at hand. Thus, it implies that, rather than opting for either bright-line rules or vague standards, legal realists would recommend using both precise rules and informative standards founded on the regulative principles of the doctrines at hand, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. Legal realists would likewise avoid binary institutional choices and, in many contexts, appreciate the comparative advantages of both legislatures and courts — in terms of both expected performance and legitimacy — as potential contributors to the development of the law.

Hasen on the Resurrection of Bush v. Gore

Richard L. Hasen (University of California, Irvine School of Law) has posted The 2012 Voting Wars, Judicial Backstops, And the Resurrection of Bush V. Gore (George Washington Law Review, Forthcoming, 2013) on SSRN. Here is the abstract:

In 2000, some scholars predicted the Supreme Court’s controversial equal protection holding in Bush v. Gore that the state could not arbitrarily value one person’s vote over that of another might be used to force states to improve their election processes through litigation. In the ensuing years, Bush v. Gore had not fulfilled that promise. Scholars debated when, if ever, the case could apply beyond the narrow facts of a statewide recount with inconsistent counting standards, but the courts seemed uninterested: the Supreme Court has failed to cite the case for any proposition, and the few lower courts which relied upon the case as precedent to create better and fairer voting conditions were overturned or limited. By 2007 I lamented the “untimely death” of Bush v. Gore.

A funny thing happened during 2012. The voting wars which had ensued since 2000 manifested themselves in a host of restrictive election rule changes passed in the name of fraud prevention and administrative convenience mostly by Republican legislatures and implemented by Republican election administrators. Democrats, the Department of Justice, and reform groups resisted the overreach, litigating over many of these changes. The results of this litigation was a mixed bag. For example, courts approved some voter identification laws, rejected others, and put Pennsylvania’s and Wisconsin’s laws on hold for this election season but perhaps not beyond that. Overall, it appeared that in the most egregious cases of partisan overreach, courts were serving, often with surprising unanimity, as a judicial backstop.

In Ohio, one of the twin epicenters (along with Florida) of the 2012 voting wars, two important cases relied in part on Bush v. Gore to expand voting rights. In one case, a conservative panel of the United States Court of Appeals for the Sixth Circuit—a court which had shown itself bitterly divided along party and ideological lines on election issues in 2008—unanimously held that Ohio’s disenfranchisement of voters for voting in the wrong polling location because of poll worker error violated the equal protection clause. In the other case, another Sixth Circuit panel held that Ohio’s contraction of the early voting period to exclude the weekend before the election, for all voters except certain military voters, violated the equal protection clause under Bush v. Gore. The court so held despite the fact that Ohio provided 23 days of early voting and for the first time sent all Ohio voters a no-excuse absentee ballot application. This latter ruling was at best a major stretch of Bush v. Gore and existing precedent.

The story of the 2012 voting wars is a story of Republican legislative and to some extent administrative overreach to contract voting rights, followed by a judicial and public backlash. The public backlash was somewhat expected—Democrats predictably made “voter suppression” a key talking point of the campaign. The judicial backlash, and the resurrection of Bush v. Gore in the Sixth Circuit, was not. The judicial reaction, from liberal and conservative judges and often on a unanimous basis, suggests that courts may now be more willing to act as backstops to prevent egregious cutbacks in voting rights and perhaps to do even more to assure greater equality and fairness in voting. However, it is possible that this trend will reverse in future elections.

Schauer on Custom

Frederick Schauer (University of Virginia School of Law) has posted The Jurisprudence of Custom (Texas International Law Journal, Vol. 48, No. 3, 2013, Forthcoming) on SSRN. Here is the abstract:

The jurisprudential dimensions of treating custom as law have been puzzling at least since the time of Bentham and Austin. If law emanates from the sovereign, and consists of commands backed by threats from the sovereign, then customary law seems scarcely law at all. Or so Bentham and Austin, each in his own way, believed. But if, in a post-Hart jurisprudential world, we can recognize that norms can be internalized by judges and other officials even if they arise from the bottom up rather than from the top down, then a new puzzle emerges. In this modern jurisprudential world, the lawness of custom can easily be explained, but custom then appears simply to be one of many forms of law, occupying no distinct juridical space. The question whether and when to treat custom as law, therefore, is no different from the question whether and when one jurisdiction treats another jurisdiction’s norms as law, and whether and when to treat some particular source as law. These are important and sometimes difficult issues, but they are more continuous with the routine questions of legal sources and legal authority than the traditional treatments of custom have assumed.

Highly recommended.

Kloosterhuis on Lasser on Judicial Deliberation

Harm Kloosterhuis (Erasmus School of Law) has posted Formal and Substantial Justification in Legal Decisions: Lasser's Judicial Deliberations - Some Critical Questions from an Argumentative Perspective on SSRN. Here is the abstract:

Lasser’s study Judicial Deliberations offers an interesting analysis of judicial discourse and legal argumentation. For theorists of legal argumentation Judicial Deliberations is an interesting project, because of its theoretical perspective, its methods and its results. In the past thirty years the study of legal argumentation has increasingly become an important field of interest. In this paper I discuss some of Lasser’s conceptual and empirical contributions to this theory of legal interpretation and argumentation. I will do this by exploring Lasser’s analysis of the difference between interpretative justification in Common Law and Civil Law countries, focusing on the difference between formal and substantial interpretative argumentation in legal decisions. In short, I will discuss Lasser’s lack of conceptualization of the distinction between formal and substantial interpretative argumentation, his methodological choices and the generalization of his empirical findings.

Trachtenberg on Reducing the Discount Rate

Ben Trachtenberg (University of Missouri School of Law) has posted Reducing the Discount Rate (The Environmental Forum, Vol. 29, No. 6, pp. 24-29 (November/December 2012)) on SSRN. Here is the abstract:

Underregulation kills. When a sensible and effective rule is proposed but then not implemented, society loses whatever benefits the regulation would have provided. When those benefits take the form of saved lives — if, for example, the rule would have kept a carcinogen out of the workplace — failing to enact and enforce a regulation means people die. Unfortunately, federal agencies in the United States systematically undercount the benefits of rulemaking, causing regulators to forsake the implementation of lifesaving measures that would have been enacted were benefits estimated more accurately. The result is American lives lost, every year.

This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that a strict economic evaluation of future lives would discount the relatively impoverished lives of present citizens compared to the projected luxurious and healthy existence of our expected descendents, just the opposite of what happens in agency practice.

Concise!

Heyman on Funeral Picketing & the First Amendment

Steven J. Heyman has posted To Drink the Cup of Fury: Funeral Picketing, Public Discourse, and the First Amendment (Connecticut Law Review) on SSRN. Here is a description:

The article discusses the Supreme Court's recent decision in Snyder v. Phelps, which held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq.

In the article, I criticize the Court’s view that the government generally may not regulate public discourse to protect individuals from emotional or dignitary injury. I then present an alternative theory of the First Amendment which aims to protect the freedom and dignity not only of speakers but also of those who are affected by the speech. Drawing extensively on the record in Snyder, I argue that the picketing in that case should not have received First Amendment protection, because it was intended to condemn the deceased and to inflict severe distress on the mourners. Finally, I show that Snyder may prove to be a Pyrrhic victory for Westboro, because the Court also suggested that the government may protect mourners through carefully drawn buffer-zone laws, such as the new federal law that Congress passed this summer.

Highly recommended.

Kende on Constitutional Pragmatism

Mark Kende (Drake University Law School) has posted Constitutional Pragmatism, the Supreme Court, and Democratic Revolution (Denver University Law Review, Forthcoming) on SSRN. Here is the abstract:

Constitutional pragmatism is under-theorized and frequently misconceived. Most constitutional interpretation discussions focus on originalism or some form of “living constitutionalism.” The irony is that the U.S. Supreme Court’s failure to adopt any single foundational constitutional theory makes pragmatism the best descriptive characterization of the Court, as Mark Tushnet has suggested. Yet, Judge Posner, Daniel Farber, and Justice Breyer certainly do not agree on what pragmatism means. This symposium paper illuminates this poor step-child in constitutional theory by providing a typology of a dozen strands of constitutional pragmatism. The paper looks at U.S. Supreme Court cases and some historical events to support this framework. For example, certain types of constitutional pragmatism do not rule out the use of fundamental moral principles in constitutional interpretation, nor are these approaches all about consequences. The paper also shows how the U.S. Revolution, and some other successful constitutional revolutions, required surprisingly pragmatic influences.

AALS Program Announcement: Jurisprudence Section on "Well-being and Fair Distribution: Beyond Cost-Benefit Analysis" by Matt Adler

Social Welfare Functions: A Roundtable on Matthew Adler’s Well-Being and Fair Distribution

Matthew Adler's book, Well-being and Fair Distribution: Beyond Cost-Benefit Analysis, is an extraordinary feat, providing a philosophical defense of social welfare functions as a framework for governmental policy analysis. The defense and design of his welfare consequentialist framework involves several theoretical and practical issues, a first set dealing with well-being: What determines an individual's well-being? Are there criteria for ranking well-being among different persons? How might policy analysts construct utility functions to represent individuals' welfare across a population? A second set of issues concerns how the social welfare function should rank potential outcomes using information about individuals' well-being. Adler defends a prioritarian social welfare function, which gives greater weight to changes in well-being for the worst-off. In so arguing, he claims that welfare consequentialism is compatible with a concern for fairness. Throughout this remarkable book, Adler draws upon welfare economics, social choice theory, philosophy, and other related fields. Four speakers will present commentary on different aspects of the book, to which Adler will respond.

Speakers:

Matthew D. Adler, Duke University School of Law
William A. Edmundson, Georgia State University College of Law
Thomas Ulen, University of Illinois College of Law
Peter Vallentyne, Florence G. Kline Professor of Philosophy, University of Missouri, Columbia, MO
Robin L. West, Georgetown University Law Center

Moderator: Paul Litton, University of Missouri School of Law