Legal Theory Blog

Download of the Week

The Download of the Week is The Pigou-Dalton Principle and the Structure of Distributive Justice by Matthew D. Adler. Here is the abstract:

The Pigou-Dalton (PD) principle recommends a non-leaky, non-rank-switching transfer of goods from someone with more goods to someone with less. This Article defends the PD principle as an aspect of distributive justice — enabling the comparison of two distributions, neither completely equal, as more or less just. It shows how the PD principle flows from a particular view, adumbrated by Thomas Nagel, about the grounding of distributive justice in individuals’ “claims.” And it criticizes two competing frameworks for thinking about justice that less clearly support the principle: the veil-of-ignorance framework, and Larry Temkin’s proposal that fairer distributions are those concerning which individuals have fewer “complaints.” 

The Article also clarifies the relation between the PD principle and prioritarianism. Prioritarians will surely endorse the PD principle (with the “good” individual well-being), but they are also committed to a distinct axiom of separability: the moral value of someone’s well-being change does not depend upon her position relative to others. The PD principle neither implies separability, nor is implied by it. Although prioritarianism is very plausible, the case for the PD principle is yet more compelling than for the combination of that principle with separability. In discussing prioritarianism, we should differentiate between these two, logically independent aspects of the view.

Highly recommended!

Download of the Week

The Download of the Week is The Third Pillar of Jurisprudence: Social Legal Theory by Brian Z. Tamanaha. Here is the abstract:

Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.

Download of the Week

The Download of the Week is The Case for Originalism by effrey Denys Goldsworthy. Here is the abstract:

The best argument for originalism is simple, straightforward, and powerful:

1. A constitution, like any other law, necessarily has a meaning that pre-exists judicial interpretation of it.

2. The meaning of a law is part (perhaps all) of what it is; therefore, to change the meaning of a law is to change the law.

3. The original meaning of a constitution is neither its original literal meaning (called “sentence meaning” by philosophers) nor its originally intended meaning (“speaker’s meaning”)’ it is, instead, its “utterance meaning,” which is determined by a restricted range of evidence, extra-textual as well as textual, of what its founders intended it to mean.

4. When a constitution itself requires that it be changed only by some special democratic procedure, this binds judges as well as other officials. The judges must not change the constitution – or, by inference from Proposition 2, its meaning – by purporting to “interpret” it.

5. Any judge who violated that requirement would flout the constitution itself, the rule of law, the principle of democracy, and (in many federal systems) the principle of federalism.

6. When interpreting such a constitution, the judges; primary duty is to reveal and clarify its pre-existing meaning. When that meaning is insufficiently determinate to resolve the case at hand, their secondary duty is to act creatively and supplement it. To supplement the meaning of the constitution is not to change it.

Two additional propositions respond to popular but misguided non-originalist criticisms:

7. Although judges must not deliberately change the constitution, there are at least four ways in which constitutional law can and does legitimately evolve over time. To that considerable extent, originalism is perfectly consistent with “common law constitutionalism” and “living constitutionalism.”

8. Consistent application of any constitutional theory, including originalism, might lead to grave injustice in a particular case. Judges might then be morally bound to disobey the constitution while pretending to obey it. But a theory justifying occasional “noble lies” about what the constitution means is not a theory about what it really means.

Highly recommended.  Goldsworthy is a key figure in the development of originalist theory in general and Australian constitutional theory in particular.  Download it while its hot!

Download of the Week

The Download of the Week is Creation Stories: Myths About the Origins of Money by Christine A. Desan. Here is the abstract:

A myth about the origins of money has long organized modern approaches to the medium. According to that creation story, money is the natural product of human exchange. It can be analogized to a commodity like silver that comes to hand out of the decentralized activity of trading or a convention like language that arises out of a consensus about the value of an item. Attributing that character to money black-boxes it: whether it is a commodity or a convention, money becomes an opaque instrument that operates to facilitate its more substantive partner, the market. Despite its stature, however, the modern creation story about money bears little resemblance to what we know about money’s invention or, rather, re-invention, in early medieval England. After considering that evidence, the article advances a creation story that explains how money emerges in conditions truly bereft of liquidity. Money is a constitutional project, a political initiative undertaken by a society to mobilize resources. Money comes into circulation when authorities use the unique capacity they have to evaluate the contributions of subjects or citizens and mark them in a common unit of account. People accept money as a token that will extinguish their obligations to the center and can be used in the interim as a medium of exchange and mode of payment. In contrast to the dominating myths about money, this alternative creation story explains how societies install those capacities and how that activity shapes “the market” that is made by money. The essay concludes by suggesting that modern money systems operate on a fiscally constructed base that is supplemented by money sold to individuals for private use.

Very interesting and recommended.

Download of the Week

The Download of the Week is The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and the Direction of Judicial Decision Making by Mark Graber. Here is the abstract:

This Article offers a more sophisticated account of elite theory that incorporates the crucial insights underlying claims that Justices with life tenure will protect minority rights and claims that the Supreme Court follows the election returns. Put simply, the direction of judicial decision making at a given time reflects the views of the most affluent and highly educated members of the dominant national coalition. The values that animate the elite members of the dominant national coalition help explain the direction of judicial decision making for the last eighty years. During the mid-twentieth century, most Republican and Democratic elites held more liberal positions on most constitutional issues than less fortunate and less affluent Democrats or Republicans. This elite consensus minimized the impact of partisan control of the White House and the partisan composition of the Court on most matters of constitutional law. By the turn of the twenty-first century, that consensus had dissipated. Most Republican elites presently take far more conservative positions on most constitutional issues than the average Republican. Most Democratic elites take far more liberal positions on most constitutional issues than the average Democrat. One consequence of this elite polarization is that partisan control of the White House and the partisan composition of the Court have extraordinary influence on most matters of constitutional law. 

A closely divided bench composed of polarized elites is vulnerable to what might be called constitutional yo-yos, dramatic swings in judicial policy making on numerous policy issues. Assume electoral politics remains fairly volatile for the near future, with Presidents of one party frequently replacing Presidents of the other party. The result will be a Supreme Court that lurches back and forth between making relatively extreme liberal and relatively extreme conservative decisions on the most important constitutional issues of the day. These potential constitutional yo-yos threaten both the majoritarian and the constitutional values that traditionally enjoy a precarious balance in the American constitutional regime. Elite polarization undermines majoritarianism by grossly exaggerating the impact of elections and public opinion on judicial decisions. Small fluctuations in public opinion and in voting behavior may induce judicial decisions that lurch back and forth between relatively extreme liberal and relatively extreme conservative opinions, even when most citizens prefer centrist positions on issues ranging from the constitutional status of abortion to the constitutional status of capital punishment. This volatility undermines constitutionalism by inhibiting such constitutional purposes as providing credible commitments to crucial stakeholders, maintaining the rule of law, and developing a national commitment to a set of fundamental constitutional aspirations. For these reasons, judicial minimalism during times of elite polarization and electoral volatility has particular merit, even if such an approach to the judicial function may disserve constitutional values during other political periods.

Highly recommended.

Download of the Week

The Download of the Week is  Statutory Interpretation from the Inside -- An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I by Abbe R. Gluck and Lisa Schultz Bressman. Here is the abstract:

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship. 

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress. 

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how "neutral" some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Highly recommended. Download it while its hot!

Download of the Week

The Download of the Week is Recess Appointments and Precautionary Constitutionalism by Adrian Vermeule. Here is the abstract:

In Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), the D.C. Circuit held (inter alia) that the President’s constitutional power to make recess appointments does not include recesses during a session of the Senate (“intrasession recesses”), as opposed to recesses between sessions (“intersession recesses”). Many commentators have taken Canning to be principally a textualist and originalist decision. I argue, to the contrary, that Canning’s textualism and originalism are derivative strategies by which the court attempted to fashion a precautionary rule against presidential aggrandizement. As such Canning is best understood to exemplify a mode of constitutional adjudication that we might call precautionary constitutionalism. As a normative matter, Canning illustrates the major problem of precautionary constitutionalism: myopic focus on a target risk may cause the rulemaker to ignore or underestimate countervailing risks, resulting in unintended, counterproductive or perverse consequences.

Highly recommended. Download it while its hot!

Download of the Week

The Download of the Week is Unconscionability, Exploitation, and Hypocrisy by Rebecca Stone. Here is the abstract:

I argue that under a wide range of conditions it will be difficult for the state to justify non-enforcement of contracts on grounds of unconscionability without making itself vulnerable either to the charge of paternalism or the charge of hypocrisy. On the one hand, the state might take the view that there is something morally wrong with the agreement because it didn’t make sense for the weaker party to enter into it in the first place. But this kind of justification seems to be premised upon a paternalistic judgment about the weaker party’s rational capacities. On the other hand, the state might take the view that although the agreement was entered into freely and rationally by both parties, it nonetheless involves a morally problematic form of exploitation, because the stronger party has secured terms that take unfair advantage of the impoverished circumstances of the weaker party. But then it is difficult to see what could be morally wrong with the contract unless the conditions under which it was made were unjust. And if the injustice of the initial conditions contributes to the state’s view that the agreement is morally problematic, then it will often be awkward for the state to invoke these moral problems to justify non-enforcement of the agreement, because the state will usually be deeply implicated in creating and preserving those unjust conditions of contract. The state’s justification thus makes it vulnerable to the charge of hypocrisy: it appears to be subjecting contracting parties to a kind of critical scrutiny to which it does not subject its own actions. 

I consider two ways in which a defender of the unconscionability doctrine might respond to the hypocrisy charge. First, he might attempt to diffuse the objection by rejecting the key premise that drives it — that the state is in fact subjecting contracting parties to a form of critical scrutiny to which it does not subject its own actions. He might do so by arguing that the state has good reasons to preserve background injustices at least in the short-run. Second, he might deny that hypocrisy has any bearing on permissibility in this context. If this objection succeeds, then the state can continue to decline to enforce exploitative contracts notwithstanding the charge of hypocrisy. I argue that the diffusion strategy succeeds in some but not all circumstances, while the second objection fails in general because the state has a pro tanto reason not to act hypocritically.

Highly recommended.

Download of the Week

The Download of the Week is Inside or Outside the System? by Eric A. Posner and Adrian Vermeule. Here is the abstract:

In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the “determinacy paradox,” and elicit its implications for the theory of public law.

Highly recommended.

And if I may also recommend The Interpretation-Construction Distinction in Patent Law by Tun-Jen Chiang & Lawrence B. Solum.

Download of the Week

The Download of the Week is The Interbellum Constitution and the Spending Power by Alison L. LaCroix. Here is the abstract:

Today, the mechanism of the spending power drives the gears of the modern federal machine. But early nineteenth century constitutional debates demonstrate that the spending power is essentially a workaround, and a recent one at that – a tool by which Congress achieves certain political and legal ends while respecting the formal boundaries set by Article I and the Tenth Amendment. This “interbellum” period was enormously significant for American constitutional law, in particular the constellation of related doctrines concerning congressional power that we now place under the general heading of “federalism”: the spending power, the enumerated powers of Article I, and the anticommandeering principle of the Tenth Amendment. As a historical matter, political and legal actors in the early nineteenth century believed themselves to be living in what this Article argues was a long founding moment, in which the fundamental terms of the federal-state relationship were still open to debate. Constitutional scholars have mistakenly overlooked the constitutional creativity of the period. As a normative matter, I argue for an approach to millennial constitutional interpretation that recognizes the ever-changing nature of the landscape of constitutional permissibility, and that offers documentary evidence of the precise contours of that change. Studying the evolution of the spending power over time, especially where the text itself remains constant, demonstrates that ideas about federal structure are not fixed. Therefore, constitutional federalism itself is not fixed – a particularly important insight in an area of constitutional doctrine that is dominated by originalist approaches.

Highly recommended. Download it while its hot!