Legal Theory Blog

Download of the Week

The Download of the Week is Polyphonic Stare Decisis: Listening to Non-Article III Actors by Kermit Roosevelt III. Here is the abstract:

This article explores the input that non-Article III actors can and should have in the Supreme Court's decision to reconsider a prior constitutional decision. It employs a model of constitutional decision-making that distinguishes between the articulation of constitutional meaning and the construction of constitutional doctrine to identify several different stages at which a court can adhere to or depart from precedent and examines the persuasive power of non-Article III input at each stage.

And from the text:

One answer might be that the Constitution does in fact require some form of stare decisis (which would imply the unconstitutionality of legislation abrogating stare decisis, though not that of legislation prescribing some particular form). Paulsen rejects this view on the ground that the Constitution says nothing about the practice and the Court’s frequent observations that stare decisis is “not an inexorable command” “illustrate the sub-constitutional, policy-based nature of the doctrine.”23 But to say that courts are not always required to adhere to precedent (“stare decisis is not an inexorable command”) is not to say that they can do without stare decisis entirely. The possibility remains that the Constitution requires some form of respect for precedent, although that form does not require adherence in every case. To put the assertion in constitutional language, it may be in the nature of the “judicial power” (and one of the things that distinguishes it from the legislative) that departures from precedent require some justification. On this view, precedent must have some force.

Indeed, if one looks at what the Supreme Court has said about precedent, there are many statements to this effect. Perhaps the best evidence comes from the Court’s struggles with the question of retroactivity: what to do when a judicial decision changes the law. At one point, the Court adopted a solution whereby it would announce a new rule in one case but then not apply that rule to cases pending on direct review in which the relevant events (typically a state-court conviction) occurred before the law-changing decision.24 But in Harper v. Virginia Department of Taxation,25 the Court pronounced this “selective prospectivity” unconstitutional, stating that “the nature of judicial review” barred the Court from holding that its decision in one case should have no effect on other similarly situated cases.

Highly recommended.

Download of the Week

The Download of the Week is Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge by John Mikhail.  Here is the abstract:

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

Download it while its hot!

Download of the Week

The Download of the Week is Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship by Gabriel J. Chin. Here is the abstract:

Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. The Canal Zone was territory controlled by the United States, but it was not incorporated into the Union. As requested by Senator McCain's campaign, distinguished constitutional lawyers Laurence Tribe and Theodore Olson examined the law and issued a detailed opinion offering two reasons that Senator McCain was a natural born citizen. Neither is sound under current law. The Tribe-Olson Opinion suggests that the Canal Zone, then under exclusive U.S. jurisdiction, may have been covered by the Fourteenth Amendment's grant of citizenship to "all persons born . . . in the United States." However, in the Insular Cases, the Supreme Court held that "unincorporated territories" were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born in unincorporated territories are not Fourteenth Amendment citizens. The Tribe-Olson Opinion also suggests that Senator McCain obtained citizenship by statute. However, the only statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937, Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. Because Senator John McCain was not a citizen at birth, he is not a "natural born Citizen" and thus is not "eligible to the Office of President" under the Constitution.

This essay concludes by exploring how changes in constitutional law implied by the Tribe-Olson Opinion, such as limiting the Insular Cases and expanding judicial review of immigration and nationality laws passed by Congress, could make Senator McCain a citizen at birth and thus a natural born citizen.

Download it while its hot!

Download of the Week

The Download of the Week is The Federal Marriage Amendment and the False Promise of Originalism by Thomas Colby. Here is the abstract:

This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in history). The problem is frequently much more fundamental, and much more fatal; it is that there was no original public meaning to begin with. It is a natural consequence of the constitution-making process that a constitutional provision addressing a deeply controversial subject can only be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single original meaning, it appeals to disparate factions with divergent understandings of its terms. As such, the central premise of originalism - that, in Justice Scalia's words, the Constitution was enacted with a fixed meaning ascertainable through the usual devices familiar to those learned in the law - is often inaccurate. And for that reason, the central promise of originalism - that, by relying on an objective, discoverable, fixed constitutional meaning, originalism can prevent judges from subverting democracy and the rule of law by reading their personal values into the Constitution - is a false one.

Download it while its hot!

And I also recommend:

Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition? by Steven G. Calabresi and Sarah E. Agudo.

Canonizing the Civil Rights Revolution: The People and the Poll Tax by Bruce Ackerman and Jennifer Nou.

Download of the Week

The Download of the Week is When is a Willful Breach 'Willful'? A Puzzle and Two Different Economic Solutions by Richard Craswell.  Here is the abstract:

Liability for breach of contract is often described as a form of strict liability, in which the measure of damages is unaffected by the culpability of the breach. However, courts sometimes do award higher damages, under various legal doctrines, if the breach is characterized by some term such as "willful" or "in bad faith." The puzzle with which the paper begins is that labels focusing on the breacher's intentions or mental state are inevitably conclusory or manipulable. Most breaches result from an entire sequence of events, and it will almost always be possible to find some events in that sequence that were deliberate and some that were random or accidental.

The paper then considers two very different economic rationales for increasing the penalties for certain breaches: rationales that differ both in the cases they identify as appropriate for extra penalties, and in the informational demands they place on courts. The first rationale, similarly to a negligence rule in tort law, requires courts to find that the breacher behaved inefficiently before they impose higher penalties - and, moreover, it requires that courts be very accurate in making such findings. However, this rationale is less demanding of courts in another respect, for it does not require that the higher measure of damages be calibrated very precisely. The second rationale, by contrast, does not require courts to make any judgment at all about the efficiency of the breacher's behavior (much like a strict liability regime in torts), but it does require courts to calibrate the measure of damages more precisely. While this important distinction is familiar from the economic analysis of tort law, it has frequently been overlooked in writings about breach of contract.

Highly recommended.

Download of the Week

The Download of the Week is When Reasons Obligate by William A. Edmundson.  Here is the abstract:

This paper explores the isomorphism between two relationships. The first is that between reasons and requirements. Reasons for action (or for belief - but the focus here is action) differ from requirements, in that reasons are typically merely advisory while requirements are mandatory. We are rationally required to do that which there is most reason for us to do (and of course if we have most reason to do nothing, that is what reason requires). This way of understanding the relationship between reasons for action and what reasons require of an actor has been called the maximizing conception.

The second relationship is that between moral reasons (a subset of reasons generally, but not necessarily a proper subset) and moral requirements. It is natural to assume that moral reasons ripen into moral requirements in the same manner that reasons generally ripen into rational requirements: we are morally required to do what we have most reason, morally, to do. This transposition of the maximizing view from the realm of reasons generally to the moral realm can be traced to Moore

The paper defends a version of Moore's view, despite its perhaps drastic consequences. Part of this defense consists of taking into account the putative incomparability between certain types of moral reasons. The paper argues that incomparability, far from undermining the maximizing view, helps it accommodate the possibility of moral options, and to that extent to avoid what has become commonly known as the strenuousness objection, typically directed against consequentialistic species of the maximizing conception. But the larger part of this defense consists of criticism of alternative accounts of the relationship between moral reasons and moral requirements. Historically, a number of ideas have been invoked to close the gap between reasons and requirements, or (as the gap could also be described) between goodness and obligation. Sanction theories, voluntaristic theories, and rationalistic or universalization theories are examined and found wanting.

The paper concludes that the maximizing conception can be reconciled with whatever is defensible in each of these alternatives: a unary account of morality and rationality is available once moral reasoning is represented as an operation of maximization performed upon a filtered or supplemented set of reasons bearing upon the actor.

Highly recommended.

Download of the Week

The Download of the Week is A Critical Guide to Vehicles in the Park by Frederick Schauer.  Here is the abstract:

The 1958 debate in the pages of the Harvard Law Review between Lon Fuller and H.L.A. Hart is one of the landmarks of modern jurisprudence. And although much of the debate was about the relative merits of Hart's version of legal positivism and Fuller's brand of natural law theory, the debate also contained the memorable controversy about the fictional rule prohibiting vehicles from the park. By examining this debate, and by largely removing it from the surrounding controversy over positivism and natural law, we can still gain valuable insights about legal rules, legal interpretation, and the nature of legal language.

Lot's of good papers this week, including:

Orin S. Kerr, The Limits of Fourth Amendment Injunctions

William A. Edmundson, Pluralism, Intransitivity, Incoherence

Kurt T. Lash, Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction

Henry E. Smith (Yale Law School) has posted Governing Water: The Semicommons of Fluid Property Rights

Download of the Week

The Dowload of the Week is The Constitution in the National Surveillance State by Jack Balkin. Here is the abstract:

During the last part of the twentieth century the United States began developing a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. This new form of governance is the National Surveillance State.

In the National Surveillance State, the government uses surveillance, data collection, collation and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is a special case of the Information State-- a state that tries to identify and solve problems of governance through the collection, collation, analysis and production of information.

The War on Terror may be the most familiar justification for the rise of the National Surveillance State, but it is hardly the sole or even the most important cause. Increasing use of surveillance and data mining by public and private entities is a predictable result of accelerating developments in information technology. In fact, most surveillance in the National Surveillance State is likely to be in private hands.

The question is not whether we will have a surveillance state in the years to come, but what sort of state we will have. The National Surveillance State poses three major dangers for our freedom. The first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights. The second danger is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services. Private power and public-private cooperation pose a third danger. Because the Constitution does not reach private parties, government has increasing incentives to rely on private enterprise to collect and generate information for it, thus circumventing constitutional guarantees. Corporate business models, in turn, lead companies to amass and analyze more and more information about individuals in order to target new customers and reject undesirable ones.

The Administrative and Welfare State raised problems not only for the Constitution, but also for the rule of law itself. The same is true for the National Surveillance State. Changing methods of government demand new strategies to preserve constitutional values and democratic self-government. We mastered at least some of the problems caused by the rise of the Administrative and Welfare state; we must hope that we can do so the same for the National Surveillance State, which is already here.

Among the other really interesting papers this week,were the following:

Authority and Authorities by Frederick Schauer

Community and Custom in Property by Henry Smith

Entrapment and the 'Free Market' for Crime by Louis Michael Seidman.

Download of the Week

The Download of the Week is The Origins of Republican Legal Theory by Mortimer Sellers.  Here is the abstract:

The first self-consciously republican ideology originated in the senatorial opposition to Gaius Julius Caesar, and implies a procedural commitment to certain republican political and legal institutions, usually attributed to Rome's republican constitution of 509-49 b.c. The basic desiderata of republican government, as articulated in the republican legal tradition derived from Rome, secure government for the common good through the checks and balances of a mixed constitution, comprising a sovereign people, an elected executive, a deliberative senate, and a regulated popular assembly, constrained by an independent judiciary, and subject to the rule of law. Some republicans would add representation, the separation of powers, or equality of material possessions, to protect public liberty (libertas) and avoid Rome's eventual descent into popular tyranny and military despotism. Republican liberty signifies subjection to the law and to magistrates, acting for the common good, and never to the private will or domination dominatio of any private master.

This is a chapter from his book, Republican Legal Theory (here is the introduction). Highly recommended.

Download of the Week

The Download of the Week is Positivism and the Inseparability of Law and Morals by Leslie Green.  Here is the abstract:

This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review.
The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a `separation of law and morals.' The paper contends that Hart's `separability thesis should not be confused with the `social thesis,' with the `sources thesis,' or with a methodological thesis about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the `internal morality of law,' the `morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

Highly recommended.  Download it while its hot!

There were many fine papers this week, some others I would particularly recommend include:

Normative Methods for Lawyers by Joseph Singer

Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis  by Michael Paulsen

Pornography, Coercion, and Copyright Law 2.0 by Ann Bartow

And if I might also recommend my own paper:

Models of Internet Governance by Lawrence Solum.