Legal Theory Blog

Lim on "Living Originalism" by Balkin

Brendan Lim (Yale Law School) has posted Review Essay: An Australian Reads 'Living Originalism' (34 Sydney Law Review 809 (2012)) on SSRN. Here is the abstract:

The work under review, by Yale Law School's Jack Balkin, sets forth a theory of constitutional interpretation reconciling originalism with living constitutionalism. It claims that the United States Constitution is best comprehended as an enabling framework for a project of governance, which successive generations must build out over time. Using rules, standards, principles and silences as distinctive textual devices, the original framers effected an allocation not only of constraint, but of delegation. Ascertaining the balance of the allocation calls for originalist methods, while making constructional choices within its bounds commits one to living constitutionalism. Construction is said to be a task shared by the courts, political branches and ordinary citizens, underwritten and legitimated by a deep political and cultural attachment to the Constitution. This essay considers the utility of the theory in Australia. Drawing on Professor Balkin's ideas, it engages with a current debate about how to understand the legitimacy of the Engineers' Case, and, with reference to Roach v Electoral Commissioner and Rowe v Electoral Commissioner, explores the under-theorised question of how ordinary statutes can affect constitutional meaning.

Ng on Copyright's Core Content

Alina Ng (Mississippi College School of Law) has posted Finding Copyright's Core Content (University of St. Thomas Law Journal, Forthcoming) on SSRN. Here is the abstract:

Copyright laws are conventionally justified on consequentialist grounds. As a result, value judgements about the viability of copyright laws are often based on their social or economic consequences. However, despite longstanding conversations among scholars about the nature of copyright and its purported effects on societies and markets, a consensus of how copyright laws ought to be structured to encourage authorship and other forms of creative endeavor has yet to emerge. Framing the analysis of copyright laws within consequentialist frameworks as intellectual property scholars have conventionally tended to do, while important in studying the consequences of laws from a socio-economic perspective, has not yielded satisfactory answers to a more fundamental question about the proper content and scope of copyright laws. For many communities and societies with increasing humanistic interests and goals, this question about the law’s proper content is a perennial one. To answer this question, this paper draws from two sources. First, legal theories on natural law, which require as a general rule that man-made laws satisfy an objective moral standard, support a proposition that copyright laws have essential moral content that may be identified through reason. Second, catholic social teachings on the common good, respect for the life and dignity of the human person, and correlation of rights and responsibility offer a framework to inform and shape appropriate copyright laws and policies. This paper proposes that for the progress of science to be sustained, the core content of copyright laws must protect the conditions that contribute towards authentic forms of authorship and support the flourishing and thriving of relationship-oriented communities. By identifying core moral content to inform and guide the development of copyright law and policy, a healthy ecology for the production and distribution of creative works may emerge to produce greater equity in how literary and artistic resources are ultimately used in the information economy.

Parry on International Law in State Courts

John T. Parry (Lewis & Clark Law School) has posted International Law in State Courts: Sovereignty, Resistance, Contagion, and Inevitability (Willamette Journal of International Law and Dispute Resolution, Vol. 20, No. 2, 2013) on SSRN. Here is the abstract:

This essay, written for a Spring 2012 symposium on international law and state government, explores the interaction of state courts and international law. The specific starting point for this exploration is the Oklahoma Save Our State Amendment and American Law for American Courts Model Act, which several states have adopted. To a large extent, this legislation reflects hostility to Islamic Law, but it also reflects suspicion about all kinds of foreign law, specifically including international law.

The essay continues by noting the extent to which U.S. law (federal and state) was open to international law in the founding era and throughout the 19th century (whether or not one thinks that international law was "automatically" part of federal or state law). State courts decided numerous questions of international law, particularly if one includes the 19th century state court decisions that at least in theory were applying the law merchant (which is certainly how the U.S. Supreme Court understood it in Swift v. Tyson).

The version of Austinian positivism articulated by the Supreme Court in Erie provides the theoretical basis for the contemporary rejection of international law. Under the categorical and territorial approach embraced by Holmes and Brandeis, international law simply is not law -- it has no political authority to back it up, and no territory to call its own.

The essay goes on to suggest several reasons why this version of positivism allows the current fear of international law to flourish. But, it also points out that state courts and state governments simply cannot avoid international law because it is already too deeply enmeshed in the U.S. legal system. The final part of the essay argues for the legitimacy of state court consideration of international law, but it also insists that the Supreme Court has the authority to review state court decisions on international law because any interpretation of international law by a state court implicates an important federal interest that includes, among other things, the question whether the international legal rule at issue should be incorporated into federal common law.

Denning on "Pot Tourism" & the Constitution

Brannon P. Denning (Samford University - Cumberland School of Law) has posted One Toke Over the (State) Line: Constitutional Restrictions on State "Pot Tourism" Restrictions on SSRN. Here is the abstract:

Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing”—visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally reselling the pot. Colorado’s legislature adopted the Task Force’s recommendation in House Bill 1317, recently signed into law by Colorado’s governor, which established the regulatory framework for the legal sale of marijuana. Among its provisions is a quarter-ounce purchase limit for nonresidents.

Treating purchasers of a legal product differently based on state residency implicates constitutional doctrines that limit a state’s ability to discriminate against nonresidents. This essay examines the Colorado recommendation in light of two of those doctrines: the Privileges and Immunities Clause of Article IV, section 2 and the dormant Commerce Clause doctrine (DCCD). At first glance, Colorado’s facially discriminatory law appears to be almost certainly unconstitutional under current doctrine. I will argue in the remainder of this essay, however, that Colorado could put forth compelling arguments that its law passes constitutional muster. Part II briefly describes the Task Force’s recommendation and its subsequent adoption by the legislature. In Part III, I analyze the Colorado nonresident purchase limit under both the Privileges and Immunities Clause of Article IV and the DCCD. A brief conclusion follows in Part IV, which also suggests a role the federal government could play to remove considerable, though not all, constitutional doubt from state regulations of pot tourism.

Ziegler on Originalism "Talk"

Mary Ziegler (Florida State University College of Law) has posted Originalism Talk: A Legal History on SSRN. Here is the abstract:

Progressives have long recognized the tremendous political appeal of originalism: it achieves results consistent with conservative values but promises the public judicial neutrality. By drawing on new historical research on antiabortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk — the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs confronted by social movements reliant on rights-based rhetoric, particularly when activists seek social change in the courts. Originalism talk was similarly constraining. By becoming part of an originalist coalition, abortion opponents increased their influence over the selection of federal judicial nominees. At the same time, in stressing originalist rhetoric, abortion opponents had to set aside longstanding constitutional commitments involving the right to life, the personhood of the fetus, and the existence of rights based in natural law or human-rights principles.

The story of antiabortion constitutionalism offers insight into progressive attempts to create a doctrinally satisfying and politically resonant alternative to conservative originalism. Often, the issue is how to create an interpretive method that accomplishes as much as originalism: advancing progressive constitutional beliefs while appealing to the public’s interest in the rule of law. As this Article shows, however, it is not clear that the benefits of belonging to the originalist coalition outweigh its costs.

Waldron on Dworkin

Jeremy Waldron (New York University School of Law) has posted Ronald Dworkin: An Appreciation on SSRN. Here is the abstract:

This is a brief tribute to Ronald Dworkin and an overview of the contributions that he made to jurisprudence. It is a written version of remarks that were presented at the Memorial Service for Professor Dworkin, at St. John's Smith Square, London, on Wednesday, June 5, 2013. The remarks cover his view of adjudication, the right answer thesis, and the obligation that lawyers, scholars and judges have to the whole body of the law. It also covers the view – which I call the artery of Dworkin's jurisprudence – that legal reasoning is a form of moral reasoning. And it relates all this to the unifying ideas about dignity in "Justice for Hedgehogs."

Dodd on Presidential Leadership & Civil Rights Before Brown

Lynda G. Dodd (The City University of New York (CUNY) - City College) has posted Presidential Leadership and Civil Rights in the Era before Brown (Indiana Law Journal, Vol. 85, No. 4, 2010) on SSRN. Here is the abstract:

Influential scholarship by political scientists studying the courts has highlighted the ways that leaders of political regimes, especially presidents, use judicial politics to promote their agendas. Taking the Truman administration's efforts to reform civil rights enforcement policies as an exemplary case study of presidential leadership, this article offers a critique of recent scholarship that centers the analysis on the institutional resources of the presidency. Through an extensive review of leading newspapers of the era and the archival records of the President's Committee on Civil Rights (PCCR), this article instead highlights the work of social movement leaders, interest groups, and the African American press in organizing and calling for presidential action and more vigorous enforcement by federal government prosecutors. The result was an interactive dynamic of pressure and change. Civil rights leaders' forceful advocacy moved the president to act, and Truman's leadership — creating the PCCR, ordering the desegregation of the military, and raising the stature of the civil rights movement in a series of important presidential addresses — offered an unprecedented level of support to the cause of civil rights, even as his proposals for civil rights legislation were thwarted in Congress. This same interactive process produced one of the unheralded achievements of this historic presidential committee: the PCCR's endorsement of calls, from the NAACP and other civil rights attorneys, for a more active amicus practice in the Solicitor General's office, an endorsement that triggered an abrupt change in the federal government's amicus role. Previous scholars have described this amicus policy shift as an example of independent executive branch action to promote civil rights. This article instead reveals longstanding resistance by the Justice Department to a robust amicus practice and shows that the origins of the policy shift are properly located in the private civil rights bar's advocacy, bolstered by the support of the PCCR.

Legal Theory Lexicon: Positive and Normative Legal Theory

Introduction

One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.

The core idea of the distinction between positive and normative legal theory is simple:

• Positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas 
• Normative legal theories tell us what the law ought to be.

Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are aboutfacts and normative legal theories are about values.  (This simple formulations assumes that facts and values are mutually exclusive, but that may not be correct.)

Positive Legal Theory

Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:

Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"  What I am calling a "doctrinal theory" is also sometimes called a "descriptive theory."

Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.  What I am calling an "explanatory theory" is also sometimes called a "causal theory."

Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.  What I am calling an "effects theory" is also sometimes called a "predictive theory."

Normative Legal Theory

Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. TheLegal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are three other distinctions that are important to understanding the general idea of a normative legal theory:

Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. TheLegal Theory Lexicon entry on second best explores these ideas in greater detail.

Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose.  Dworkin's theory--"law as integrity"--is an example of a justificatory theory: Dworkin offers theories that "fit and justify" existing law.  Such justificatory theories do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.

Normative Legal Theories, Political Philosophy, and Comprehensive Moral Theories Another important issue concerns the relationship of normative legal theory to other normative theories, especially political philosophy, ethics, and comprehensive moral theories.  Normative political philosphy asks questions about the normative justification for the state and the normative principles that establish the ends of and limits on the content of the law.  The term ethics can be defined in various ways--but for our purposes on this , ethics might be seen as concerned with the morality of individual action outside the political sphere.  A comprehensive moral theory might encompass both ethics and normative political philosophy.  Normative legal theories have as their domain the normative evaluation of legal substance and procedure.  Normative theories about the law as a whole might be called "general normative jurisprudence."  There can also be normative theories of particular legal domains--"normative constitutional theory," "normative tort theory," and so forth.

One picture of this relationship normative legal theory, on the one hand, and moral and political philosophy, on the other, might be called "top-down."  That is, we might start with a comprehensive moral doctrine (such as utilitarianism or Kant's version of deontology).  Using the method of deduction, we might try to deduce the principles of political philosophy and ethics from a comprehensive moral theory, and the principles of normative legal theory might in turn be deduced from those of political philosophy and ethics.  The top-down approach is exemplified by some consequentialists, who argue for a comprehensive moral doctrine such as welfarism or utilitarianism and then derive normative justifications or criticisms from the comprehensive doctrine and facts about which legal rules will result in what consequences.

Another possibility is that normative legal theory is relatively independent of ethics and political philosophy.  It is at least conceivable that one might believe that the realm of interpersonal ethics is governed by a different set of principles and theories than is the law.  For example, one might espouse deontological ethics, but believe that the laws should (for the most part) be aimed at maximizing utility.

The Intersection of Positive and Normative Theory

So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.

Positive Theory in the Service of Normative Theory--One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.

Positive Theory as a Constraint on Normative Theory--Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.

Interpretivism and "Law as Integrity"--There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.

Conclusion

The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!

Related Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 011: Second Best
• Legal Theory Lexicon 012: Virtue Ethics
• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 031: Virtue Jurisprudence
• Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract

Bibliography

• Adrian Vermeule, Connecting Positive and Normative Legal Theory, 10 University of Pennsylvania Journal of Constitutional Law 387 (2007).

(This entry was last revised on June 9, 2013.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends Simpler: The Future of Government by Cass R. Sunstein. Here is a description:

Simpler government arrived four years ago. It helped put money in your pocket. It saved hours of your time. It improved your children’s diet, lengthened your life span, and benefited businesses large and small. It did so by issuing fewer regulations, by insisting on smarter regulations, and by eliminating or improving old regulations. Cass R. Sunstein, as administrator of the most powerful White House office you’ve never heard of, oversaw it and explains how it works, why government will never be the same again (thank goodness), and what must happen in the future.

Cutting-edge research in behavioral economics has influenced business and politics. Long at the forefront of that research, Sunstein, for three years President Obama’s “regulatory czar” heading the White House Office of Information and Regulatory Affairs, oversaw a far-reaching restructuring of America’s regulatory state. In this highly anticipated book, Sunstein pulls back the curtain to show what was done, why Americans are better off as a result, and what the future has in store.

The evidence is all around you, and more is coming soon. Simplified mortgages and student loan applications. Scorecards for colleges and universities. Improved labeling of food and energy-efficient appliances and cars. Calories printed on chain restaurant menus. Healthier food in public schools. Backed by historic executive orders ensuring transparency and accountability, simpler government can be found in new initiatives that save money and time, improve health, and lengthen lives. Simpler: The Future of Government will transform what you think government can and should accomplish.

And for a different perspective on OIRA, see Inside EPA: A Former Insider's Reflections on the Relationship between the Obama EPA and the Obama White House by Lisa Heinzerling. 

Download of the Week

The Download of the Week is The Audience in Intellectual Property Infringement  by Jeanne C. Fromer & Mark A. Lemley. Here is the abstract:

Every IP right has its own definition of infringement. In this paper, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. The fact that patent law focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. Consumers, by contrast, are likely to pay more attention to market substitution and less attention to how things work under the hood. Understanding the different audiences in IP infringement is critical to understanding how the IP regimes define infringement. 

The focus on audience has normative as well as descriptive implications. Neither patent law, with its focus on experts and technical similarity, nor trademark law, with its market-based consumer focus, has it entirely correct. Rather, we suggest that as a general matter infringement of an IP right should require both technical similarity and market substitution. Assessing infringement through the expert’s eyes ensures that the law prevents closely related works in the field while allowing later contributions to the field that are sufficiently different. The consumer vantage point ensures that we protect IP owners only when they have been harmed in the marketplace. 

IP owners who want to show infringement should have to show both that the defendant’s work is technically similar to their own from the expert’s vantage point and that the defendant’s use causes the plaintiff market harm. Copyright law, which does look both to experts and to consumers at various points in infringement analysis, is on the right track.

Highly recommended.