Legal Theory Blog

Legal Theory Lexicon: Inference to the Best Explanation (Abduction)

Introduction

Early in the first year of law school, students are likely to realize that facts are crucially important.   But the law school curriculum is designed so as to make the process of legal factfinding almost invisible.  The traditional first year courses focus on appellate cases and legal norms.  The facts are givens.  The standards of appellate review largely insulate factfinding by trial courts from examination by appellate courts.  And casebooks focus on legal rules and largely exclude cases that focus on the factfinding process.  The primary law school course that focuses on factfinding is Evidence, but in this course, the emphasis on questions about the admissibility of evidence on not the processes by which juries and judges move from evidence to findings of fact.

Facts are important in trials and regulatory proceedings, but they are also important in the lawmaking processes that occur in legislatures and in common law courts.  Sometimes we call the facts that are found in trial courts "adjudicative facts" and the facts that are used in lawmaking "legislative facts."  A similarly phrase is used to describe the facts that are used in the development of constitutional doctrines; these facts are sometimes called "constitutional facts."

So perhaps it is no surprise that most law students have never thought seriously about the logical structure of the factfinding process.  My sense is that most students have a basic familiarity with the distinction between deductive and inductive arguments, but I would guess that many (or perhaps almost all) law students are unfamiliar with the idea of "interference to the best explanation" or "abduction."  Indeed, at this point many readers might assume that this Lexicon entry is going to address an obscure topic that is only of interest to legal theorists: after all, how important could inference to the best explanation be, if law students, lawyers, and judges have never heard of it.  But in fact, factual arguments based on inference to the best explanation are ubiquitous in the law.  Knowing something about they way such arguments work can be eye opening and extremely useful.

As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory. 

Deduction, Induction, and Abduction

The first step in understanding inference to the best explanation is to distinguish it from two other forms of argument, "deduction" and "induction."  Almost every law student has a basic understanding of deductive arguments.  A deductive argument is valid if the truth of its premises guarantee the truth of the conclusion; deductive arguments are sound if their logical structure is valid and their premises are true.  Thus, "All dogs are mammals.  All mammals are animals.  Therefore, all dogs are animals." is both sound and valid.

Good inductive arguments do not guarantee the truth of the conclusion; instead, inductive arguments provide some degree of support for their conclusions.  Here is an example:

• Every crow in a sample of one thousand is black.  This supports the conclusion that all crows are black.

An entire field of legal study, "Empirical Legal Studies," is devoted to what we are calling "inductive arguments."

Most law students are familiar with "induction" and "deduction" but I would guess that most law students have never heard of "abduction" or "inference to the best explanation."  Unlike deductive arguments, arguments based on inference to the best explanation do not guarantee the truth of their conclusions.  Unlike inductive arguments, inference to the best explanation does not depend on generalization from many instances (or samples).  An argument from inference to the best explanation frequently moves from one fact (which might be an event or occurrence) to a conclusion on the basis that the conclusion is the best explanation for the fact that provides the premise for the argument.  This may sound very abstract, but the idea is simple and intuitive in the context of specific examples.

Examples Inference to the Best Explanation

The best way to understanding inference to the best explanation is via examples.  Here are a few:

• Helberta wakes up in the morning and goes into the kitchen.  The beans for coffee have been ground and placed in the filter bag in the coffee maker.  Helberta is positive that they did not do this last night.  The best explanation for this state of affairs is that Helberta's partner Gertruda set up the coffee the prior evening.
• Walter is found dead from a gunshot wound inflicted by a 45 calibre bullet.  The day before, Graham and Walter had a violent argument during which Graham threatened to kill Walter.  Graham owns a 45 calibre revolver and cannot account for his actions during the time period during which the shooting must have occurred.  The best explanation for these circumstances is that Graham shot Walter.
• You are walking on the beach and see the following letters in sand: "L i f e  i s  b e a u t i f u l."  It is is possible that the letters were caused by random wave action, but the best explanation is that another person drew the letters in the sand with their finger.

None of these examples involve inductive or deductive arguments.  In each of the examples, it is logically possible that your conclusion is false.  If you doubt this, consider the following additions to the examples:

• After Helberta sips her coffee, her sister Alberta comes into the room, surprising Helberta.  Alberta says, "Sorry to scare you.  I arrived late last night and Gertruda let me in.  I got the coffee ready."
• After the police investigate Walter's shooting, they discover that Alice, Walter's wife had learned about the argument between Walter and Graham, had access to Graham's revolver, and was furious at Walter because they had learned that Walter had been sleeping with another woman.
• After you see the writing on beach, you come across a boy and their dog.  The boy says, "Spot, write 'hello'!" and remarkably, the dog traces the letters "H e l l o" in the sand and these letters are similar in width and shape to the letters you saw earlier.

Arguments from an inference to the best explanation do not guarantee the truth of their conclusions, even when they make the conclusion seem very likely.  Given new and different facts to be explained, the process of inference to the best explanation can lead to a different conclusion.

Inference to the Best Explanation in the Law

Inferences to the best explanation ubiquitous in the law.  The idea of "circumstantial evidence" is based on inference to the best explanation.  When someone says "the evidence is only circumstantial" they are point out the possibility that the inference to the best explanation does not guarantee the truth of the conclusion.  But inference to the best explanation operates in the context of non-circumstantial evidence as well.  Suppose that there is an eyewitness to a shooting (Helena) and that the Helena testifies at trial that Roberta was the shooter.  The fact to be explained is Helena's testimony.  If we believe her, it is because we believe that the best explanation for her having testified that Roberta was the shooter is that Roberta did in fact do the shooting, that Helena witnesses the shooting, and that Helena is now truthfully recounting what she saw.  Of course, there are other explanations, and there is empirical evidence that eyewitness identifications of strangers are frequently wrong.  More generally, inference from the testimony of witnesses to the facts about which they testify all depend on inferences to the best explanations.

The role of inference to the best explanation is not limited to factfinding at trial.  The factual predicates for policy arguments may be based on inferences to the best explanation.  And many doctrinal arguments about legal content use inference to the best explanation as well: the courts in cases X, Y, and Z, made decisions A, B, and C, and the best explanation for this patter of decisions is that the courts were implicitly following legal norm P.

Once you start looking for arguments from the best explanation in law, you will find them everywhere.

Inference from the Best Explanation and Behavior Economics

Just because inference to the best explanation is ubiquitous does not mean that it is unproblematic.  Human psychology influences which inferences are seen as best, but the psychological mechanisms may be biased or flaw.  Behavioral economics, which is grounded in psychology, identifies various heuristics that may result in inferences to the best explanation that are, in fact, invalid.  For example, it may be the case that there is a tendency to prefer simple explanations over complex ones, but that the simplicity of an explanation is not a good predictor of its accuracy.

Conclusion

This Lexicon entry aims to introduce the idea of abduction or inference to the best explanation.  The bibliography provides some references for additional reading and legal applications.  There is much more to be said about this topic, but I hope that I have provided enough background to get you started.

Related Lexicon Entries

• Legal Theory Lexicon 054: Standards of Review

Bibliography

• James Hawthorne, Inductive Logic, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/logic-inductive/ (2018).
• Igor Douven, Abduction, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/abduction/ (2017).
• Harman, G., 1965. “The Inference to the Best Explanation,” Philosophical Review, 74: 88–95.
• Craig R. Callen, Spotting A Preponderance of the Evidence in the Wild: Inference to the Best Explanation and Sufficiency of the Evidence, 48 Seton Hall L. Rev. 1517 (2018).
• Ronald J. Allen & Alex Stein, Evidence, Probability, and the Burden of Proof, 55 Ariz. L. Rev. 557 (2013).
• Peter Lipton, Inference to the Best Explanation (2d ed. 2004).

Legal Theory Bookworm: "Dimensions of Normativity," edited by Plunkett, Shapiro, & Toh

The Legal Theory Bookworm recommendsDimensions of Normativity: New Essays on Metaethics and Jurisprudence, edited by by David Plunkett, Scott J. Shapiro, & Kevin Toh.  Here is a description:

Understood one way, the branch of contemporary philosophical ethics that goes by the label "metaethics" concerns certain second-order questions about ethics--questions not in ethics, but rather ones about our thought and talk about ethics, and how the ethical facts fit into reality. Analogously, the branch of contemporary philosophy of law that is often called "general jurisprudence" deals with certain second-order questions about law--questions not in the law, but rather ones about our thought and talk about the law, and how legal facts fit into reality. Put more roughly, metaethics concerns a range of foundational questions about ethics, whereas general jurisprudence concerns analogous questions about law. As these characterizations suggest, the two sub-disciplines have much in common, and could be thought to run parallel to each other. Yet, the connections between the two are currently mostly ignored by philosophers, or at least under-scrutinized. The new essays collected in this volume are aimed at changing this state of affairs. The volume collects together works by metaethicists and legal philosophers that address a number of issues that are of common interest, with the goal of accomplishing a new rapprochement between metaethics and jurisprudence.

And the table of contents:

Introduction 
David Plunkett, Scott Shapiro, and Kevin Toh

1. Peter Railton, University of Michigan
'We'll see you in court!': The Rule of Law as an Explanatory and Normative Kind

2. Nicholas Southwood, Australian National University 
Law as Conventional Norms

3. David Copp, University of California, Davis 
Legal Teleology: A Naturalist Account of the Normativity of Law

4. David Enoch, Hebrew University of Jerusalem 
Is General Jurisprudence Interesting?

5. Kathyrn Lindeman, Saint Louis University 
Legal Metanormativity: Lessons for and from Constitutivist Accounts in the Philosophy of Law

6. David Plunkett, Dartmouth College
Robust Normativity, Morality, and Legal Positivism

7. Mitchell Berman, University of Pennsylvania 
Of Law and Other Artificial Normative Systems

8. George Letsas, University College London 
Law's Full-Blooded Normativity

9. Stephen Finlay, University of Southern California 
Defining Normativity

10. Kevin Toh, University College London
Legal Philosophy à la carte

11. Brian Leiter, University of Chicago
Theoretical Disagreements in Law: Another Look

12. Teresa Marques, Logos / University of Barcelona
Hybrid Dispositionalism and the Law

13. Alex Silk, University of Birmingham 
Normativity in Language and Law

14. Katharina Nieswandt, Concordia University 
Authority and Interest in the Theory of Right

15. Luís Duarte d'Almeida, University of Edinburgh
On the Legal Syllogism

16. Sam Shpall, University of Sydney
Dworkin's Literary Analogy

17. Connie Rosati, University of Arizona 
Constitutional Realism

Download of the Week: "Historical Gloss, Madisonian Liquidation, & the Originalism Debate" by Bradley & Siegel

Curtis Bradley (Duke University School of Law) & Neil Siegel (Duke University School of Law) have posted Historical Gloss, Madisonian Liquidation, and the Originalism Debate on SSRN.  Here is the abstract:

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to this post-Founding governmental practice in discerning the Constitution’s separation of powers. Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation. Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation. In this Article, we first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued inter-branch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether, insofar as there are differences, those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar’s account of liquidation is properly attributed to Madison.

Highly recommended.  Download it while it's hot!

Cunningham & Egbert on Corpus Linguistics & the Emoluments Clauses

Clark D. Cunningham (Georgia State University College of Law) & Jesse Egbert (Northern Arizona University) have posted Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses on SSRN.  Here is the abstract:

In interpreting the Constitution's text, courts "are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from their technical meaning'." District of Columbia v. Heller, 554 U.S. 570, 576 (2008). According to James Madison: "[W]hatever respect may be thought due to the intention of the Convention, which prepared and proposed the Constitution, as a presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed through the Conventions which ratified the Constitution."

In looking for "presumptive evidence of the general understanding at the time of the language used" courts have generally relied on dictionary definitions and selected quotations from texts dating from the period of ratification. This paper presents a completely different, scientifically-grounded approach: applying the tools of linguistic analysis to "big data" about how written language was used at the time of ratification. This data became publicly available in Fall 2018 when the website of the Corpus of Founding Era American English (COFEA) was launched. COFEA contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.

The authors illustrate this scientific approach by analyzing the usage of the word emolument by writers in America during the period covered by COFEA, 1760-1799. The authors selected this project both because the interpretation of two clauses in the Constitution using emolument are of considerable current interest and because the meaning of emolument is a mystery to modern Americans.

The District of Columbia and State of Maryland are currently suing President Donald Trump alleging that his continued ownership of the Trump Hotel in Washington puts him in violation of Constitutional prohibitions on receiving or accepting "emoluments" from either foreign or state governments. The President's primary line of defense is a narrow reading of emolument as "profit arising from an office or employ."

The authors accessed every text in COFEA in which emolument appeared - over 2500 examples of actual usage - and analyzed all of these examples using three different computerized search methods. The authors found no evidence that emolument had a distinct narrow meaning of "profit arising from an office or employ." All three analyses indicated just the opposite: emolument was consistently used and understood as a general and inclusive term.

The authors have filed an amicus brief in support of neither party in the pending 4th Circuit appeal in the Trump Hotel case, reporting the results of the research described in this article. The brief is available at SSRN: https://ssrn.com/abstract=3334017.

Egbert is a professor of applied linguistics who has co-authored or co-edited three books and more than 60 peer-reviewed publications. Cunningham is a law professor who has written previously about applying linguistics to the interpretation of legal texts, including Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994); Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm,', 73 Wash. U. L.Q. 1159 (1995); and A Linguistic Analysis of the Meanings of 'Search' in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1998).

Call for Papers: "A Critical Guide to Civil Procedure" at Boston University

A Critical Guide to Civil Procedure

Call for Papers

Boston University School of Law (host; co-sponsors Seattle University and University of Washington)

Workshop Date: Wednesday, May 8, 2019

Abstract Deadline: March 15, 2019

Convenors: Portia Pedro, Brooke Coleman, Suzette Malveaux, & Elizabeth Porter

Civil Procedure is not a technocratic, neutral area of study, yet there is no collection of civil procedural scholarship engaging perspectives at the margins. In this workshop, we will discuss these perspectives. The workshop will support a book project that the convenors are editing.

The idea for the book project is to create a critical reference guide for the core civ pro concepts students learn every year. We envision a collection of essays - loosely keyed to traditional textbook topics - that reveal the relationship between civil procedural rules/doctrines and race, gender, sexual orientation, national origin, class, and disability. In addition to basic civil procedure concepts like pleading, jurisdiction, discovery, and aggregate litigation, we hope to include a critical analysis of related topics such as rulemaking institutions, arbitration, and remedies.

This workshop will include authors who have already agreed to contribute to this book project, but we also want to bring in more voices. At the workshop, contributors will discuss a five-page precis of their essay (precis are to be submitted in advance of the workshop). The final essays should be roughly 10,000 words, including footnotes. (Essays should not include “Part I” basic background, but should center on the author’s critical analysis.) The essays for the book project are due by August 1, 2019.

If you are interested in participating in the workshop and contributing to the book, please submit an abstract and author biography (no longer than 500 words each) by March 15, 2019 to critcivpro@gmail.com. We will select papers by April 1, 2019.

The workshop will provide meals for contributors. Contributors must cover travel and lodging costs. Information about reasonably-priced hotels will be provided as the date approaches.

Financial Assistance: Convenors may allocate limited funds to help cover partial travel expenses or accommodations for a small number of selected participants. If you wish to be considered for financial assistance, please submit a separate written request, specifying your city of departure and an estimate of travel costs, along with your abstract submission. We regret in advance that we are unable to provide full financial assistance to participants. Feel free to contact us with any questions.

Brooke Coleman (colemanb@seattleu.edu)

Suzette Malveaux (suzette.malveaux@colorado.edu)

Portia Pedro (ppedro@bu.edu)

Elizabeth Porter (egporter@uw.edu)

Bassok on Schmitt, Kelsen, and Constitutional Courts

Or Bassok (University of Nottingham - Faculty of Law and Social Sciences) has posted The Schmitelsen Court: The Question of Legitimacy (German Law Journal, Forthcoming) on SSRN.  Here is the abstract:

In recent years, a new creature has emerged on the institutional landscape: the Schmitelsen Court. This Court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate during the Weimar years on “Who is the Guardian of the Constitution?”. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. However, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton in the Federalist No. 78 raised the notion of the guardian of the constitution long before Schmitt and Kelsen did so. He designated the judiciary as the guardian and ascribed expertise as its source of legitimacy. After describing how in recent decades the American Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into a Schmitelsen guardian.

Very interesting and highly recommended.

Roisman on Presidential Factfinding

Shalev Roisman (Harvard Law School) has posted Presidential Factfinding (Vanderbilt Law Review, Forthcoming) on SSRN.  Here is the abstract:

The modern President possesses enormous power. She can use force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the “national interest,” perhaps that it will preserve “regional stability” or protect American lives. To impose sanctions, she might have to determine that a country has used chemical weapons against its own people. To remover an officer with for-cause protection, she must find that there was “cause,” such as “inefficiency, neglect of duty, or malfeasance.” Given that the President can only invoke these powers—and many, many others—when certain facts exist, the process and standard of certainty the President uses to find such facts can have enormous consequences. The phenomenon of presidential factfinding is thus both commonplace and important. It is also almost entirely unstudied.

This Article establishes the importance of presidential factfinding as a pervasive feature of presidential power spanning constitutional, statutory, and international law. The Article then examines the President’s existing obligations in conducting factfinding, arguing that the President has a constitutional duty to act, at the least, honestly and based on reasonable inquiry. Finally, it addresses how presidential factfinding ought to be structured and regulated internally within the executive branch, by Congress, and through judicial review.

Highly recommended.  Timely.

Chapman on Federal Funding of Missionaries & the Establishment Clause

Nathan S. Chapman (University of Georgia School of Law) has posted Money for Missionaries: Rethinking Establishment Clause History on SSRN.  Here is the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

Highly recommended.

Pearl on Originalism & Native Americans

M. Alexander Pearl (Texas Tech University School of Law) has posted Originalism and Indians (Tulane Law Review, Vol. 93, No. 269, 2018) on SSRN.  Here is the abstract:

Indian tribes, in the context of U.S. constitutional theory, do not fit. They are an anomaly in American governmental structure. Tribal governments exist today within the constitutional framework of the United States only by virtue of acrobatic displays of rhetorical legal reasoning and mythologized interpretations of history. Originalist theory can provide a clear exit from the inconsistencies and inaccuracies underlying the foundation of federal Indian law.

Typically, scholars embracing an originalist position are thought of as conservative. A conservative position is typically associated with opposition to tribal sovereignty. In contrast to those traditional views, I argue that an originalist view of the Constitution can produce a very different constitutional understanding of Indian tribes that supports a robust construction of tribal sovereignty. Today, a number of originalists occupy seats on the United States Supreme Court, but their respective records on Indian law decisions are distinct. To advance an originalist constitutional theory supportive of meaningful tribal sovereignty, this Article compares the jurisprudence of Justice Thomas and Justice Gorsuch with respect to Indian law. These two Justices, supposedly cut from the same originalist cloth, provide a perfect opportunity to critically examine the complexities of originalism as applied to Indian tribes.

I offer a new originalist vision of federal Indian law and tribal sovereignty and suggest it fits squarely within the jurisprudence of Justice Gorsuch. I also contend that Justice Thomas’s record on Indian law reflects anti-originalist principles by reaffirming longstanding historical misconceptions of the fundamental precepts of the United States and applying contemporary definitions to constitutional terms. I end by identifying the longstanding federal Indian law principles that are fundamentally inconsistent with this view.

Highly recommended.  Download it while it's hot!

Pfander on Common Law Remedies and Dicey on the Rule of Law

James E. Pfander (Northwestern University School of Law) has posted Dicey's Nightmare: An Essay on the Rule of Law (California Law Review, Forthcoming) on SSRN.  Here is the abstract:

The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today.

This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.

Highly recommended.  Download it while it's hot!

Schwartz on Implied Commerce Clause Powers

David S. Schwartz (University of Wisconsin Law School) has posted An Error and an Evil: The Strange History of Implied Commerce Powers (American University Law Review, Vol. 68, 2019) on SSRN.  Here is the abstract:

An underspecified doctrine of implied "reserved powers of the states" has been deployed through U.S. constitutional history to prevent the full application of McCulloch v. Maryland's concept of implied powers to the enumerated powers"in particular, the Commerce Clause. The primary rationales for these implied limitations on implied federal powers stem from two eighteenth and nineteenth century elements of American constitutionalism. First, the inability of pre-twentieth century judges to conceptualize a workable theory of concurrent federal and state power made it seem constitutionally necessary to limit the Commerce Clause and to refrain from applying the concept of implied powers to the Commerce Clause in order to preserve a substantial scope for state regulation. Second, because slavery so obviously fed into interstate and international trade, a robust application of implied powers to the Commerce Clause could naturally lead to a congressional power to "interfere with" the institution of slavery within the states. Antebellum judges and political leaders saw the implied limitation of such a power as an inescapable element of the constitutional bargain. These twin supports of the implied limitation concept have been eliminated from American constitutional law, yet the concept persists, with potentially significant consequences. In National Federation of Independent Business v. Sebelius, the 2012 Affordable Care Act case, for example, five Justices maintained that there is an implied limitation against regulating economic "inactivity." The justification offered for this is an abstract concept of federalism that is largely detached from the once powerful, but now defunct, principles of constitutional politics that sustained it.

Reinstein on the Implied Powers of the United States

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted The Implied Powers of the United States on SSRN.  Here is the abstract:

The conventional understanding of McCulloch v. Maryland is that an act of Congress must be within the scope of specified enumerated powers or an appropriate means to carry those specified powers into effect. But, as many scholars have observed, there is a major anomaly in this formulation. Important exercises of national power cannot readily be tied to specified enumerated powers or justified as means to effectuate those powers. Among other implied national powers, the general and exclusive national powers over foreign relations and immigration are commonly cited examples.

Several distinguished scholars, pointing to such anomalous powers, have argued that the means-ends approach of McCulloch is incorrect and that Congress possesses a more expansive regulatory power to legislate for the national general welfare, or, as sometimes articulated, to address all national necessities or exigencies. They rely, inter alia, on the general welfare clauses of the Preamble and Article I, Section 8; conceptions of inherent national sovereignty; the actions of the Constitutional Convention concerning Resolution VI of the Virginia Plan; and the “all other powers” provision of the Necessary and Proper Clause. Although these scholars present important insights, their arguments for a national general welfare power are not supported by constitutional text, history and structure.

This article proposes an original theory of how the enumerated powers should be construed and explains the source and scope of implied national powers. The error in using the mean-ends approach as setting the outer limits of national power is that it treats each specified enumerated power as independent of and unconnected to the others. Instead, the enumerated powers are deeply inter-connected and can and should be construed in the aggregate. Virtually all of the specified enumerated powers of all three branches are contained in four clusters of powers – common defense, foreign relations, preventing or resolving disputes between the States, and a national economic union. When viewed from the perspectives of text, history and structure, the Constitution vested four great aggregate powers (or comprehensive enumerated powers) in the Government of the United States. Implied national powers are constitutional when they are necessary and proper to carry one or more of those aggregate powers into effect.

This theory is based on (a) construing the Constitution as a whole and not as the accumulation of unrelated parts; (b) the historical origin of the enumerated powers in the actual long-standing distribution of powers between the imperial British government and the colonial assemblies; (c) the correspondence of these four comprehensive powers with the four essential purposes of the Union as stated in Federalist 23; (d) Alexander Hamilton’s argument of aggregate power in his defense of the Bank of the United States; (e) the Supreme Court’s adoption of Hamilton’s argument as the basis for upholding the Bank in McCulloch; (f) other precedents; and (g) Congress’s authority to carry into execution not only the specified enumerate powers but also “all other Powers vested by this Constitution in the Government of the United States.” Finally, this theory respects the Convention’s commitment to federalism by giving the national government plenary authority over four discrete areas that are essential to union while reserving extensive autonomy in the States and the people.

Very interesting and recommended.

Herstein on Negligence & Moral Responsibility

Ori J. Herstein (The Hebrew University of Jerusalem, Faculty of Law; King's College London - Dickson Poon School of Law) has posted Nobody’s Perfect: Moral Responsibility in Negligence (Canadian Journal of Law & Jurisprudence, Vol XXXII, No. 1 (2019)) on SSRN.  Here is the abstract:

Given the unwittingness of negligence, personal responsibility for negligent conduct is puzzling. After all, how is it that one is responsible for what one did not intend to do or was unaware that one was doing? How, therefore, is one’s agency involved with one’s negligence so as to ground one’s responsibility for it? Negligence is an unwitting failure in agency to meet a standard requiring conduct that falls within one’s competency. Accordingly, negligent conduct involves agency in that negligence is a manifestation of agency failure. Now, nobody’s perfect. Human agency is innately fallible, and a measure of agency failure is, therefore, unavoidable. The more one’s negligence manifests failure in one’s agency as an individual, the more one is responsible for it. In contrast, the more one’s negligence involves the shortcomings innate to all human agency the less responsible one becomes, because one’s agency as an individual is less and less involved in one’s failure. Determinative of the measure of individual and of human failings mixed into an instance of negligent phi-ing is the background quality of one’s agency at meeting one’s competency at phi-ing. That is, how able one is at delivering on what one is able to competently do. The more able, the less one’s occasional instances of negligence involve manifestations of failures of one’s agency as an individual – nobody’s perfect – and are more manifestations of one’s agency’s innate human fallibility, making one less and less responsible for one’s negligence.

Recommended.

Criddle & Fox-Decent on Mandatory Multilateralism

Evan J. Criddle (William & Mary Law School) and Evan Fox-Decent (McGill University - Faculty of Law) have posted Mandatory Multilateralism (113 American Journal of International Law (2019 Forthcoming)) on SSRN.  Here is the abstract:

This Article challenges the conventional wisdom that states are always free to choose whether to participate in multilateral regimes. We argue that contemporary international law requires multilateralism in at least five domains: (1) disputes involving rivalrous claims to territorial jurisdiction, (2) disputes involving conflicting legal entitlements, (3) the administration of common resources, (4) threats to international peace and security, and (5) grave breaches of international human rights and international criminal law.

International law’s commitment to mandatory multilateralism, we claim, is explained by its organizing principles of sovereign equality and joint stewardship. Sovereign equality provides for states’ mutual independence within an international legal order structured in part by a prohibition on unilateralism. Similarly, when international law assigns collective responsibility to states to regulate certain global public goods (e.g., the deep ocean floor, international peace and security), joint stewardship dictates that states must regulate those goods multilaterally rather than unilaterally.

Where mandatory multilateralism applies, it imposes a substantive requirement that states pursue equitable solutions to controversies by balancing their own legal interests with the interests of others. States also bear procedural obligations to investigate and consult with other interested states, negotiate in good faith, and if negotiations stall, submit to third-party dispute resolution. If states are unable to agree on a negotiated solution or a forum for arbitration, they must maintain a dialogue and refrain from taking steps that would prejudice negotiations.

The final section of the Article explains how mandatory multilateralism offers lessons with respect to three current controversies: the South China Sea dispute, the United States’ pending withdrawal from the 2015 Paris Agreement, and Bolivia’s efforts to compel Chile to negotiate over territorial access to the Pacific.

Highly recommended.

Colonnelli, Gallego, & Prem on Predicting Corruption

Emanuele Colonnelli (University of Chicago Booth School of Business), Jorge A. Gallego (New York University (NYU), Faculty of Arts and Science, Wilf Family Department of Politics), & Mounu Prem (Universidad del Rosario) have posted What Predicts Corruption? on SSRN.  Here is the abstract:

Using rich micro data from Brazil, we show that multiple popular machine learning models display extremely high levels of performance in predicting municipality-level corruption in public spending. Measures of private sector activity, financial development, and human capital are the strongest predictors of corruption, while public sector and political features play a secondary role. Our findings have implications for the design and cost-effectiveness of various anti-corruption policies.

Marks on AI Suicide Prediction

Mason Marks (New York University School of Law; Information Law Institute; Yale University - Information Society Project; Leiden University, Leiden Law School, Centre for Law and Digital Technologies) has posted Artificial Intelligence Based Suicide Prediction (Yale Journal of Health Policy, Law, and Ethics, Forthcoming, Yale Journal of Law & Technology, Forthcoming) on SSRN.  Here is the abstract:

Suicidal thoughts and behaviors are an international public health concern contributing to 800,000 annual deaths and up to 25 million nonfatal suicide attempts. In the United States, suicide rates have increased steadily for two decades reaching 47,000 per year and surpassing annual motor vehicle deaths. This trend has prompted government agencies, healthcare systems, and multinational corporations to invest in tools that use artificial intelligence to predict and prevent suicide. This article is the first to describe the full landscape of these tools, the laws that apply to their operation, and the under explored risks they pose to patients and consumers.

AI-based suicide prediction is developing along two separate tracks: In “medical suicide prediction,” AI analyzes data from patient medical records; In “social suicide prediction,” AI analyzes consumer behavior derived from social media, smartphone apps, and the Internet of Things. Because medical suicide prediction occurs within the healthcare system, it is governed by laws such as the Health Information Portability and Accountability Act (HIPAA), which protects patient privacy; regulations such as the Federal Common Rule, which protects the safety of human research subjects; and general principles of medical ethics such as autonomy, beneficence, and justice. Moreover, medical suicide prediction methods are published in peer-reviewed academic journals. In contrast, social suicide prediction typically occurs outside the healthcare system where it is almost completely unregulated, and corporations often maintain their prediction methods as proprietary trade secrets. Due to this lack of transparency, little is known about their safety or effectiveness. Nevertheless, unlike medical suicide prediction, which is primarily experimental, social suicide prediction is deployed globally to affect people’s lives every day.

Though AI-based suicide prediction may improve our understanding of suicide while potentially saving lives, it raises many risks that have been under explored. The risks include stigmatization of people with mental illness, the transfer of sensitive health data to third-parties such as advertisers and data brokers, unnecessary involuntary confinement, violent confrontations with police, exacerbation of mental health conditions, and paradoxical increases in suicide risk. After describing these risks, the article presents a policy framework for promoting safe, effective, and fair AI-based suicide predictions. The framework could be adopted voluntarily by companies that make suicide predictions or serve as a foundation for regulation in the US and abroad.

Keren on Compensation for Emotional Harms

Hila Keren (Southwestern Law School) has posted Valuing Emotions (Wake Forest Law Review, Vol. 53, No. 5, 2018) on SSRN.  Here is the abstract:

This Article illuminates an unresolved legal enigma: Why is private law so reluctant to compensate victims for emotional harms while it is fully committed to compensating them for any other type of harm? It proposes a novel analysis of the deeper roots of the problem and a solution. This Article shows that the persistent resistance to compensation in the affective domain comes from a broader legal misunderstanding and mistreatment of emotions. Opponents of compensation are wrong to assume that emotional harms are trivial, easy to fake, or impossible to value. Rather, with the help of scientific and technological progress, it should be clear by now that the devaluation of emotional harms is unjustified, injurious to victims, and toxic to relational norms of behavior. What's worse, as this Article exposes, is that while the debate has continued without resolution, reality has dramatically changed. Outside of law and under a neoliberal worldview, the value of emotions has been celebrated, making emotions a new type of personal property and an important component of people's human capital. The Article thus demonstrates that in today's hypercompetitive world the refusal to compensate for emotional harms is more devastating than ever before. For that reason the Article proposes that it is about time we start valuing emotions — recognizing their importance and compensating those who suffered emotional harms. The Article then discusses how to shape the necessary reform, mainly by utilizing existing remedial tools to cope with concerns related to verification and measurement — a challenge that is in no way unique to emotional harms and should not continue to prevent appropriate compensation.

Bhatia on Caste and Law

Gautam Bhatia (Yale University - Law School) has posted Caste and the Law on SSRN.  Here is the abstract:

As one of the organizing principles of Indian society, it is scarcely surprising that caste has many interfaces with the legal system. The relationship between caste and the law is a complex one: if the law claims to govern a society that is, at least in principle, broadly committed to egalitarianism in the public sphere, it must necessarily take account of — and intervene into — caste structures that are driven by the contrary logic of hierarchy. But the very act of doing so — as we shall see — becomes constitutive of changes in the concept of caste itself, under pressure from the force of law. Law and caste, therefore, are in constant tension with one another, and their relationship remains a fluid and dynamic one.

A complete analysis of the numerous interfaces between caste and the Indian legal system would require many volumes. Here, I shall limit myself to flagging four main themes: first, the ways in which caste appears in the Indian Constitution (I); secondly, the role of caste in the Indian Supreme Court’s engagement with reservations (II); thirdly, the jurisprudential link that has been drawn between caste, territory, and religion (III); and fourthly, legislative attempts to prevent and redress caste-based domination and subordination (IV). I have chosen these four themes because, while the first structures any enquiry into the relationship between caste and law, the rest are salient and live issues today; moreover, they are specifically relevant for interdisciplinary studies. Each of these issues has seen the courts drawing upon insights from sociology, anthropology, and history (among other disciplines), to arrive at their conclusions. While the form of reasoning — and the outcome — is, of course legal in character, the important judgments rely upon — and have an impact upon — aspects that go much beyond the field of law, and will probably be of interest and concern to a wide range of scholars.

Eldar on Duff on Public Deliberation about Criminalization

Shachar Eldar (Ono Academic College Faculty of Law) has posted Suggested Improvements on Antony Duff’s Model for Deliberating About Criminalization (18 Jerusalem Review of Legal Studies (OUP, 2019)) on SSRN.  Here is the abstract:

In his masterful new book 'The Realm of Criminal Law', Antony Duff offers both a principle of Criminalization and a method for public deliberation about the scope of criminalization. Duff’s proposed method of deliberation assumes that a polity reaches a clear vision of its civil order and of the extent of public wrongs before it begins to deliberate which public wrongs deserve the response of criminalization. I argue that a polity’s conception of public wrongs (and indeed, of its civil order) is in part defined through, and not before the formulation of criminal prohibitions. The upshot of this argument is a process of deliberation that is more fluid than the stringent progression in Duff’s model.

Miller & Pojanowski on Torts Against the State

Paul B. Miller and Jeffrey A. Pojanowski (Notre Dame Law School and Notre Dame Law School) have posted Torts Against the State (Civil Wrongs and Justice in Private Law, Paul B. Miller and John F.K. Oberdiek, eds., Oxford U. Press (2020, Forthcoming) on SSRN.  Here is the abstract:

The state provides the forum in which private parties can seek recourse for tortious wrongs other private parties cause. The state can also be liable for torts it commits. These observations are commonplaces. The state can also be a tort plaintiff, however, and that phenomenon has important implications for tort theory. Natural persons and artificial persons like the state have different kinds of interests, and these interests, in turn, implicate different sets of values. Accommodating torts against personified entities like the state will require tort theorists to significantly amend leading models, which presume wrongs against individual, natural persons. Some of these changes may be difficult for some scholars to stomach given their other theoretical commitments, including, especially, their normative priors. Nevertheless, a more complete theory must account for torts against the state.

Highly recommended.

Kar & Radin on Pseudo-Contract

Robin Bradley Kar (University of Illinois College of Law) & Margaret Jane Radin (University of Toronto - Faculty of Law; University of Michigan Law School) have posted the final version of Pseudo-Contract and Shared Meaning Analysis (Harvard Law Review, Vol. 132, No. 4, p. 1135, Forthcoming) on SSRN.  Here is the abstract:

Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. Recent attempts to draw all boilerplate text into “contract” seek to end that struggle but have shifted contract law away from its traditional focus on enforcing parties’ actual agreements and common understandings. This has required a series of ad hoc “fixes” to contract law reminiscent of the medieval use of “epicycles” to try to square geocentric theories of planetary motion with recalcitrant observations of a nongeocentric universe. This shift has been transforming the meanings of contract law’s central concepts. We view the shift as an undiagnosed paradigm slip, resulting in a generalized theory of “contract” as a mere assumption of risk that allows private obligations to be created unilaterally without reaching the actual agreements required by core contract law principles. Some now call this new sort of obligation “contract.” But it is pseudo-contract, resembling contract without fulfilling its necessary conditions of validity.

The recent paradigm slip into pseudo-contract raises a complex blend of linguistic, factual, conceptual, practical, normative, and doctrinal problems. Under the mantle of “contract,” the problems of pseudo-contract have remained largely hidden. In this Article we expose these problems and develop a more nuanced and coherent method of analysis — shared meaning analysis — that courts and other legal analysts can use to determine when any particular piece of boilerplate text does, or does not, contribute an actual term to a contract.

Because facts about language have received insufficient attention in discussions of how boilerplate text may (or may not) contribute to contract meaning, we launch our analysis by developing several seminal insights into the dependence of meaning on social cooperation from the language philosopher Paul Grice. Drawing on his insights into language, we develop a contemporary definition of the shared meaning of a contract (or the “common meaning of the parties”) as that meaning that is most consistent with the presupposition that both parties were using language cooperatively to contract. We then offer a simple conceptual test that courts can use to discern this shared meaning, distinguish contractual from noncontractual uses of boilerplate text, and prevent contract from slipping into pseudo-contract. We pay particular attention to diagnosing deceptive or misleading uses of boilerplate text. Using examples ranging widely from clickwrap consumer contracts to high-end boilerplate contracts between sophisticated parties, we show how shared meaning analysis applies generally to many varieties of contract.

Highly recommended.  Download it while it's hot!

This is the final version of a paper that I have previously recommended.  An important statement on contract theory and an important contribution to the literature that connects philosophy of language and theoretical linguistics to theories of the interpretation and construction of legal documents.

Call for Papers: European Junior Faculty Forum for Public Law and Jurisprudence

On June 10-11, 2019, the WZB Center for Global Constitutionalism, together with the London School of Economics and Political Science and the European University Institute will hold the third European Junior Faculty Forum for Public Law and Jurisprudence (EJFF). Supported by the Modern Law Review, it will be hosted by the LSE in London. Modeled after similar forums in North American academia, the forum aims to bring together young EU or associated countries based postdoctoral scholars in the field of Public Law and Jurisprudence for an opportunity to present and discuss papers commented on by senior researchers. Further information as well as a link to the Call for Papers may be obtained via the following link:

<https://www.wzb.eu/en/forschung/bereichsuebergreifende-forschung/center-for-global-constitutionalism/european-junior-faculty-forum>. 

All public law focused or related submissions are welcome, from a legal perspective as well as from adjacent disciplines such as Philosophy, Sociology, History or Political Science.

Khanna on General Counsel & Corporate Crime

Vikramaditya S. Khanna (University of Michigan Law School) has posted An Analysis of Internal Governance and the Role of the General Counsel in Reducing Corporate Crime (Forthcoming, Research Handbook on Corporate Crime and Financial Misdealing 2018 (Jennifer H. Arlen ed., Edward Elgar)) on SSRN.  Here is the abstract:

This chapter reviews the empirical literature on the factors related to the likelihood and detection of corporate wrongdoing, which increasingly focuses on internal governance, and examines calls to split the traditional tasks of the General Counsel (GC) between the GC and a Chief Compliance Officer (CCO) who reports directly to the Board. The reason for this is to have more independence and expertise in compliance matters than the GC’s office traditionally provides. This chapter argues that although independence is often valuable in reducing wrongdoing, in this context, it is likely to come with additional costs that may make gathering information on wrongdoing more difficult. In particular, some employees may be more reluctant to provide information as easily to a CCO than to the GC and this might sometimes result in increased wrongdoing and weaker operating performance. These deleterious effects, however, might be somewhat ameliorated by institutional and governance design adjustments. This chapter examines what factors may drive likely outcomes and finds that further empirical inquiry would be valuable and suggests some ways in which future research might engage in this inquiry.

Capers on a Majority Minority Future & Policing

I. Bennett Capers (Brooklyn Law School) has posted Afrofuturism, Critical Race Theory, and Policing in the Year 2044 (New York University Law Review, Vol. 94, p. 101, 2019) on SSRN.  Here is the abstract:

In 2044, the United States is projected to become a “majority-minority” country, with people of color making up more than half of the population. And yet in the public imagination—from Robocop to Minority Report, from Star Trek to Star Wars, from A Clockwork Orange to 1984 to Brave New World—the future is usually envisioned as majority white. What might the future look like in year 2044, when people of color make up the majority in terms of numbers, or in the ensuing years, when they also wield the majority of political and economic power? And specifically, what might policing look like? This Article attempts to answer these questions by examining how artists, cybertheorists, and speculative scholars of color—Afrofuturists and Critical Race Theorists—have imagined the future. What can we learn from Afrofuturism, the term given to “speculative fiction that treats African-American themes and addresses African-American concerns [in the context of] techno culture?” And what can we learn from Critical Race Theory and its “father” Derrick Bell, who famously wrote of space explorers to examine issues of race and law? What do they imagine policing to be, and what can we imagine policing to be in a brown and black world?

 

Browne on Gender Equality in the Workplace

Kingsley R. Browne (Wayne State University Law School) has posted The Quixotic Quest for 'Gender Equality' in the Workplace (49 University of Toledo Law Review 685-714 (2018)) on SSRN.  Here is the abstract:

There is little reason to think that victory in the war for gender equality in the workplace will ever be declared, both because it is implausible that the sexes will ever sort themselves in precisely the same way and because an entrenched narrative of female victim-hood requires continued perceptions of inequality irrespective of the facts on the ground.

The pattern of women’s representation in both educational fields and occupations is consistent with long-recognized sex differences in patterns of occupational interest. Yet the fact that women do not earn majorities in every field (especially some STEM fields) is deemed inequitable, despite their heavy majorities in many other fields, suggesting that the implicit definition of “gender equality” of some advocates is that women should be guaranteed at least half of all things that are perceived to be “good.” Likewise, the under-representation of women in the executive suite is to a large extent a result of sex differences in parental choices, especially the decision of highly able women (married to highly able and high-earning men) to reduce their workforce involvement after marriage and especially after entering motherhood.

Women and men will continue to exhibit different workplace behaviors. However, attributing these differences to true choice diminishes the force of the victim narrative, so choice becomes “choice,” and women are treated as puppets acted upon by others (men, employers, universities, society). In addition to stripping women of agency, this perception guarantees that the war for gender equality will continue so long as women and men make different life choices. In other words, it will never end.

Cannan on Legislative History

John Cannan (Drexel University Thomas R. Kline School of Law) has posted Resolving Ambiguity: The Continued Relevance of Legislative History in an Era of Textualism on SSRN.  Here is the abstract:

This article argues that Judge Brett Kavanaugh’s decision in Allina Health Servs. v. Price, 863 F.3d 937 (D.C. Cir. 2017), currently before the U.S. Supreme Court, was the correct one, but only by chance. Kavanagh based his ruling on subjective textualism. Congress’ true intent for the provision at issue, 42 U.S.C. 1395hh(a)(2), can be found in legislative history that has gone largely overlooked. This paper examines this history and shows how legislative history, in general, should, at the very least, continue to be persuasive evidence of statutory meaning.

Gordley & Jiang on Fairness and Contract

James Gordley and Hao Jiang (Tulane University Law School and City University of Hong Kong School of Law) have posted Fairness and the Law of Contract on SSRN.  Here is the abstract:

Relief is given for severely unfair contracts, and yet there is no generally accepted explanation of what makes a contract unfair. Neither is there a generally accepted explanation of why contracts should be enforced. The explanation popular in the 19th century was that contracts should be enforced because the parties expressed their will to be bound. According to the members of the law and economics movement, they should be enforced because it is efficient to do so. Neither the will theorists nor the partisans of economic analysis can accommodate the concept of fairness. For that reason, their explanations of why contracts should be enforced are flawed. Contracts should be enforceable when they are fair. That principle explains not only the doctrine of unconscionability but the doctrines that traditionally determine when a contract is to be enforced such as consideration, impracticability, mistake, and frustration of purpose.

Buell on Fraud

Samuel W. Buell (Duke University School of Law) has posted Fraud (The Palgrave Handbook of Applied Ethics and Criminal Law (K. Ferzan & L. Alexander eds. 2019)) on SSRN.  Here is the abstract:

This handbook chapter explains the law of criminal fraud. The central point is that the terms of black-letter law do not sufficiently illuminate the criminal law of fraud, and certainly cannot resolve hard cases. The chapter explains why that is so. It then illustrates a methodology for determining whether deceptive practices are criminal frauds, on the dimensions of both actus reus and mens rea. The argument is descriptive and not, for the most part, normative. On actus reus, the key questions involve the norms and expectations that apply in particular markets. On mens rea, the central inquiry examines an actor’s awareness of the wrongfulness of his conduct.

Bradley & Siegel on the Role of Historical Practice and Constitutional Construction

Curtis Bradley (Duke University School of Law) & Neil Siegel (Duke University School of Law) have posted Historical Gloss, Madisonian Liquidation, and the Originalism Debate on SSRN.  Here is the abstract:

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to this post-Founding governmental practice in discerning the Constitution’s separation of powers. Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation. Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation. In this Article, we first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued inter-branch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether, insofar as there are differences, those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar’s account of liquidation is properly attributed to Madison.

Highly recommended.  Download it while it's hot!

If I might offer a tentative metalinguistic proposal, it seems to me that "historical practice" is the general term for the general category of arguments that ground constitutional constructions on the historical practices of Congress and the executive branch (as opposed to precedent).  "Liquidation" and "gloss" might be considered subsets of this more general class of arguments.  On this topic, the distinction between interpretation and construction is key to avoiding conceptual confusion.  Historical practice can play an evidentiary role in the discovery of meaning (interpretation), but arguments about "gloss" and "liquidation" go to legal effect (construction).

Glogower on the Constitutionality of a Federal Wealth Tax

Ari D. Glogower (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted A Constitutional Wealth Tax on SSRN.  Here is the abstract:

Policymakers and scholars are giving serious consideration to a federal wealth tax. Wealth taxation could address the harms from rising economic inequality, promote equality of social and economic opportunity, and raise the revenue needed to fund critical government programs. These reasons for taxing wealth may not matter, however, if a federal wealth tax is unconstitutional.

Scholars debating the constitutionality of a wealth tax generally focus on a specific question: Would a tax on a base of a taxpayer’s wealth (a “traditional wealth tax”) be a “direct tax” under the Constitution that is subject to apportionment among the states by population? Apportionment would be impossible for such a tax, which explains the centrality of this question in the prior literature.

This Article argues, in contrast, that the possible constitutional restrictions on a traditional wealth tax may not matter. If the Supreme Court were to find that the Constitution foreclosed a traditional wealth tax, Congress could instead tax wealth indirectly, by adjusting a taxpayer’s income tax liability on account of her wealth. This Article describes three methods for making this adjustment (collectively, “Wealth Integration” methods): A taxpayer’s wealth could affect her base of taxable income (the “Base Method”), the applicable rate schedule (the “Rate Method”) or the availability of credits against tax (the “Credit Method”).

This Article first describes the economic effect of these Wealth Integration methods and why they may be more versatile than previously appreciated in the literature. As under a traditional wealth tax, Wealth Integration methods will account for a taxpayer’s wealth in determining her tax liability. The amount of this effective tax on wealth, however, will depend on the amount of the relevant income tax adjustment.

The constitutional analysis of Wealth Integration methods would be intrinsically different from that of a traditional wealth tax. The Court could strike down Wealth Integration methods only by overruling settled prior precedent, invalidating many current features of the income tax, and fundamentally restricting Congress’ power to tax income under the Sixteenth Amendment.

Finally, this Article considers the broader implications of Wealth Implication methods for the constitutionality of a traditional wealth tax. The possibility that Congress could instead tax wealth through Wealth Integration methods provides a new argument why the Court should uphold traditional wealth tax as well. Otherwise, the Court would have to choose between restricting the Sixteenth Amendment or introducing a formal distinction between economically similar taxes that would still diminish the effect of the apportionment requirement.

Holtermann on the Empirical Turn in Legal Scholarship

Jakob v. H. Holtermann (University of Copenhagen - iCourts - Centre of Excellence for International Courts) has posted Philosophical Questions at The Empirical Turn (Forthcoming in European Journal of Legal Studies) on SSRN.  Here is the abstract:

Adopting a meta-perspective, this contribution focuses on the ongoing empirical turn in legal scholarship as such. A recurrent issue of controversy and (self-) doubts has to do with understanding the intricate relationship between empirical findings and more traditional doctrinal approaches to law. This discussion centers on the following line of questions: i) In what sense do empirical studies form part of a legal science? ii) Why, if at all, should they be pursued at a law faculty? iii) What do empirical studies tell us about valid law? iv) What do they tell us about what obligations and rights people have? v) How do empirical findings relate to the kind of knowledge traditionally sought in the doctrinal study of law? Rather than attempting to give an answer to these questions, this contribution suggests a taxonomical framework within which discussion about them ought to take place. Based on an analysis of the different stances taken by prominent theorists on the relation between traditional doctrinal work and empirical work in the legal field, the author suggests that we should distinguish between the following three attitudes on the relation between traditional legal doctrinal studies and empirical studies of law: toleration, replacement, and synthesis.

Pahuja on "The End of Capitalism" by Gibson-Graham

Sundhya Pahuja (Melbourne Law School) has posted Book Review: ‘You Can Have Any Colour You Like, As Long As It’s Black’: The Discursive Constrains of Capitalism or Why No One Is a Marxist Anymore (10:2 Canadian Journal of Women and the Law) on SSRN.  Here is the abstract:

In 'The End of Capitalism' (as we knew it), J.K Gibson-Graham mounts a sustained critique of the discursive coherence of capitalism. Drawing on diverse strands of feminist and poststructuralist thought, the author encourages us to unpack and examine representations of capitalism and our own assumptions about what it means. We are urged to see, perform and narrate economic difference. In the process, Gibson-Graham presents the reader with an engaging survey of much critical social theory, particularly postmodern Marxism and poststructuralist feminism. After reading this book, we need no longer feel overwhelmed by the prevalent triumphalist representations of capitalism, which is particularly welcome when economic globalisation risks being the descriptor of a generation.

Eldar on Criminal Attempt

Shachar Eldar (Ono Academic College Faculty of Law) has posted Reforming the Law of Criminal Attempt: Take Two (Criminal Law Reform Now (JJ Child & RA Duff eds., 2019) at 75) on SSRN.  Here is the abstract:

There is little disagreement that the law of criminal attempt is in need of reform, but the correct formula for restructuring it is elusive. The present article traces the failed effort to amend the law governing criminal attempt carried by the Law Commission in its report no. 318, from 2009. Learning from the mistakes of the past, I propose here guidelines for what may be a more theoretically sound and viable solution, particularly in relation to (a) delineating the lower boundary of attempt liability, (b) excluding offences from the applicability of attempt liability, and (c) exempting cases of abandonment from liability.

Fenster on Wikileaks & Transparency

Mark Fenster (University of Florida - Levin College of Law) has posted 'Bullets of Truth': Julian Assange and the Politics of Transparency on SSRN.  Here is the abstract:

This essay updates (to early 2019) earlier work on the WikiLeaks story in order to consider what more recent developments reveal about the theoretical promise that Assange articulated at the time of the website’s emergence. Assange has characterized secrecy as both a form and symptom of corruption, and ultimately as the foundation of a “conspiracy” of governance that states like the U.S. inflict on their subjects and the world. He advocates a non-political, vigilante form of transparency in which WikiLeaks serves as a neutral entity that will save the public and free the world with information. He predicted that corrupt political orders would fall as the threat of exposure forces the collapse of their conspiratorial communication networks. But WikiLeaks has failed not only to save the world but to save itself from politics — and in the process has itself become a bit player in the larger geo-political drama that it had hoped to disrupt. Assange’s theory of information disclosure, as well as his assumptions about the state and governing institutions, have proven far too descriptively and normatively simple. More prominent, less radical theories of transparency should take note of these failures to the extent that they share many of his assumptions.

Fenster's work on transparency is important!  Highly recommended.

 

Conference Announcement: Civil Procedure Workshop at Texas

5TH ANNUAL
CIVIL PROCEDURE WORKSHOP
OCTOBER 2 5 & 26, 2019

The CPW gives both emerging and established civil procedure scholars an
opportunity to gather with colleagues and present their work to an expert audience.
Scholars will present their papers in small panel sessions. A senior scholar will
moderate each panel and lead the commentary. In addition to paper presentations,
we intend to engage members of the judiciary and federal civil rulemaking bodies in
discussions about current developments in procedure. Our ongoing goal is for the
CPW to strengthen the study of procedure as an academic discipline, and to deepen
ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2019 include Kevin Clermont, Mechele Dickerson, J. Maria
Glover, Tara Leigh Grove, Olatunde Johnson, Linda Mullenix, James Pfander, Charlie
Silver, Shirin Sinnar, Steve Vladeck, and Patrick Woolley. We welcome all civil
procedure scholars to attend. Those wishing to present a paper for discussion should
submit a two-page abstract by March 15, 2019.

While we welcome papers from both emerging and senior scholars, preference may
be given to those who have been teaching for less than ten years. We will select
papers to be presented by April 22, 2019. Please send all submissions or related
questions to Bob Bone.

The CPW will provide meals for registrants. Participants must cover travel and
lodging costs. We will provide information about reasonably priced hotels as the date
approaches. Feel free to contact us with questions.

Bob Bone (UT Austin), rbone@law.utexas.edu
Dave Marcus (UCLA), marcus@law.ucla.edu
Liz Porter (UW), egporter@uw.edu
Brooke Coleman (Seattle U), colemanb@seattleu.edu

Davidson on Generational Sovereignty & Environmental Preservation

John Edward Davidson (University of Oregon) has posted Never Say Never: Reconciling Generational Sovereignty with Environmental Preservation on SSRN.  Here is the abstract:

Generational sovereignty and environmental preservation are two dominant strands of intergenerational justice theory, often promoted by the same individuals. However, the two principles stand in an apparent tension with one another. If environmental policy is determined by shifting voter preference, environmental protection regimes will be unevenly enforced over time. Sporadic enforcement results in net deterioration. Since some environmental destruction (e.g., species extinction, climate change) is irreversible on any humanly meaningful timescale, pure generational sovereignty would seem to insure the destruction of some critical natural resources. This apparent conflict is illusory: generational sovereignty not only allows for environmental preservation, it requires it. To demonstrate this point, I focus on two key principles: 1) the concept of sovereign resources, which recognizes the disposition of certain critical resources as inherently governmental; and 2) the understanding that de facto entrenchment of policy offends generational sovereignty as much as, de jure entrenchment. In my explanations, I rely heavily on United States public trust jurisprudence and related planetary trust concepts from international law.

Chng on Aquinas on Justice & Legality

Kenny Chng (Singapore Management University) has posted An Analysis of St. Thomas Aquinas’s Position on the Relationship between Justice and Legality ((2018) 27 Journal Jurisprudence 238) on SSRN.  Here is the abstract:

St. Thomas Aquinas, the Angelic Doctor, was renowned for his genius. His masterful exposition of Christian theology, drawing upon Aristotle’s philosophy to form a solid intellectual foundation for Christian ideas, has formed the core of the Catholic Church’s teaching for almost a thousand years. Beyond Christianity, Aquinas has also exerted a major influence on legal philosophy. As the foremost expositor of natural law theory, natural law theorists to the present age owe a great debt to Aquinas’s discussion of law in his Treatise On Law. However, one aspect of Aquinas’s legacy has generated an inordinate amount of contention – his view of the relationship between justice and legality. Is an unjust law a law at all? Modern natural law theorists taking contradictory positions all claim to be faithful to Aquinas’s ideas on the matter. Some, taking a view that has been described as “strong natural law theory”, argue that Aquinas believed that the injustice of a law renders it legally invalid. Others, taking the position of “weak natural law theory”, argue that Aquinas perceived an unjust law as legally defective but still a law in a secondary sense. Even legal positivists, the traditional opponents of natural law theory, have proposed interpretations of Aquinas’s thoughts on the matter. They cannot all be correct.

This paper is directed at investigating what really Aquinas’s position was on the relationship between justice and legality. It will do so by taking a detailed look at Aquinas’s Treatise On Law, the broader context of the Summa Theologiae (“the Summa”) within which the Treatise is situated, and Aquinas’s methodological and definitional approaches. The outline of the paper is as follows. First, it will describe the different positions that modern natural law theorists have taken on the relationship between justice and legality, with a view to identifying the key conceptual differences between strong and weak natural law theory. Second, it will briefly describe how Aquinas’s thought on this issue has been interpreted by modern legal theorists, to illustrate the extent of disagreement between interpreters of Aquinas. Third, it will provide an overview of Aquinas’s arc of argument in his Treatise On Law, to provide context for the subsequent deep-dive into Aquinas’s thought. Fourth, the paper will formulate a set of questions to be resolved, corresponding to the key conceptual differences between strong and weak natural law theory, and will then evaluate Aquinas’s text, context, and methodology to determine how Aquinas’s thought bears on these questions.

Legal Theory Lexicon: The Construction Zone

Introduction

Law students quickly learn that many legal texts are vague or open-textured.  Words like "reasonable" and phrases like "freedom of speech" do not provide bright-line rules for their application.  This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in order to formulate implementation rules (the legal doctrines that courts use to apply the text to particular cases).  If we distinguish between "interpretation" (which discovers meaning) and "construction" (which determines legal effect, we can call these zones of underdeterminacy "construction zones."

This entry in the Legal Theory Lexicon provides a short introduction to the idea of a "construction zone."  As always, the Lexicon is aimed at students, especially first-year law students, with an interest in legal theory.

The Interpretation-Construction Distinction

The idea of a "construction zone" is based on the interpretation-construction distinction.  The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:

Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett.

Underdeterminacy

The idea of "underdeterminacy" is best explained by comparison with two contrasting ideas, "determinacy" and "indeterminacy."  A legal text is "indeterminate" if it provides no guidance at all, permitting judges reach any result they wish.  A legal text is "determinate" if it fully determines application.  "Underdeterminacy" applies when a legal text is consistent with more than one outcome, but rules out other outcomes.  In other words, a legal text is underdeterminate with respect to the legal rules that implement that text if and only if it allows for some possible rules but rules out others.

Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text.  For example, the communicative content of the phrase "freedom of speech" underdetermines the legal content of free-speech doctrine.  The linguistic meaning of the phrase "freedom of speech" does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech.  These legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.

There are many reasons for the underdeterminacy of legal texts.  Here is a brief catalog:

Vagueness and Open Texture: Some legal texts are vague because they create borderline cases: for example, the word "tall" is vague, because there is no bright-line between persons who are tall and those who are not.  Other texts include "open textured" provisions.  Typically, an open-textured legal rule has a core of determinate application and an equally determinate core of nonapplication, but creates a set of cases where the rule may or may not apply.

Irreducible Ambiguity: Many words and phrases are ambiguous: they have more than one meaning.  "Bank" can refer to a financial institution or the soil that adjoins a river.  Usually, we can resolve ambiguity by context, but some terms may be irreducibly ambiguous.  For example, a legislature may decide to use ambiguous language if a compromise cannot be reached on some issue: this kind of ambiguity "kicks the can down the road," creating a construction zone to be resolved by judges or officials at some future date.

Gaps:  Some legal texts may contain "gaps."  For example, a statute may create a legal question but provide no legal rule to govern that question.  The resulting "gap" creates a construction zone.

Contradictions:  Complex statutes sometimes contain contradictions, provisions that conflict with each other.  Again, the contradictory provisions create a construction zone, where the resolution of the conflict must be done by officials or courts when they implement the statute.

When a legal text is vague, open-textured, irreducibly ambiguous, has gaps, or contains contradictions, it creates a "construction zone."  The legal effect of the constitutional clause, statutory provisions, or contract clause will underdetermine its legal effect.  In this zone of underdeterminacy, construction will be required to determine legal content and application to particular cases.  In other words, underdeterminacy creates construction zones.

Interpretation Zone versus Construction Zone

Now that we have the idea of a construction zone, we can introduce a contrasting notion.  The "interpretation zone" is the set of issues and cases for which the meaning of the text is determinate.  Some legal texts are fully determinate: once we know what they mean, we know how to apply them.  For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.

The notion of an interpretation zone is relative to theories of interpretation and construction.  For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone.  But purposivists may not accept this idea.  Because they believe that the purpose of a statute should determine the statute's legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.

Methods of Construction

Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue.  The next step is to determine what methods of construction are appropriate for the determination of legal effect.  This step involves theories of construction: such theories provides methods for choosing implementation rules.

There are many possibilities.  For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision.  Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate.  Precedent or historical practice might play a role in the construction zone.

The law is full of doctrinal techniques for resolving cases in the construction zone.  For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test.  Or the courts might precisify a vague provisions by devising a bright-line rule that implements that purpose of the provision.  Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.

Conclusion

The idea of a construction zone is a powerful tool for analyzing questions about the interpretation and construction of legal texts.  I hope that this entry in the Legal Theory Lexicon has provided a basic introduction to this idea and the complementary notion of an interpretation zone.

Related Lexicon Entries

• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 050: Default Rules and Completeness
• Legal Theory Lexicon 063: Interpretation and Construction
• Legal Theory Lexicon 071: The New Originalism
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 079: Communicative Content and Legal Content

Bibliography

• Jack Balkin, Living Originalism (Harvard University Press 2011).
• Randy E. Barnett, Restoring the Lost Constitution: The Presumptions of Liberty (Princeton University Press 2003).
• Randy E. Barnett, Interpretation and Construction, 34 Harvard Journal of Law and Public (2011).
• Lawrence Solum, The Interpretation-Construction Distinction, 27 Constitutional Commentary 95 (2010 ).
• Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
• Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (New ed. University Press of Kansas 2001).
• Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Harvard University Press 2001).

(First posted on February 9, 2019)

Legal Theory Bookworm: "The Legal Theory Bookworm: "Research Handbook on Feminist Jurisprudence," edited by West & Bowman

The Legal Theory Bookworm recommends Research Handbook on Feminist Jurisprudence, edited by Robin West & Cynthia Grant Bowman.  Here is the abstract:

The Research Handbook on Feminist Jurisprudence surveys feminist theoretical understandings of law, including liberal and radical feminism, as well as socialist, relational, intersectional, post-modern, and pro-sex and queer feminist legal theories.

Featuring contributions from a diverse team of prominent scholars, this Research Handbook illuminates the ways in which feminist scholarship has enriched understandings of law's sometimes subordinating structures and the ways in which law can be interpreted or changed so as to promote the equality, liberty, wellbeing, and interests of women. The expert contributors offer a vast range of feminist perspectives on law, including liberal, radical, and post-modern feminism, and explore the implications of these theoretical stances for understandings of the nature of law, legal change, and the relationship between law and politics. Chapters analyse the influence of feminist legal theories on doctrinal areas of law including US constitutional and civil rights law, international law, and various areas of private law.

This insightful book will be of interest to law students, legal scholars, and scholars of political and moral philosophy seeking to understand the entire body of feminist legal scholarship from the early 1970s to the present, as well as its variants, and relationships among different theoretical perspectives.

Contributors include: S.F. Appleton, K.K. Baker, I. Caglar, M. Chamallas, C.-j. Chen, M.A. Fineman, M.A. Franks, C. Grant Bowman, B.A. Gur, N.D. Hunter, L.C. Ikemoto, O. Kamir, H. Keren, S.A. Law, N. Menon, N. Naffine, J.A. Nice, V.F. Nourse, N. Rimalt, D.E. Roberts, L.A. Rosenbury, J.C. Suk, D. Tuerkheimer, R. West, A.K. Wing, K.A. Yuracko

And from the reviews:

'This Research Handbook provides a diverse array of critical, descriptive, and normative perspectives on feminist jurisprudence, with rich historical accounts of legal advances and backlashes. Centered primarily on US feminism, the volume also includes interesting chapters with a foreign or international focus. It should prove a highly valuable resource for feminist scholars and advocates in many parts of the world.'--Vicki C. Jackson, Harvard Law School, US

'This landmark collection, edited by two leading feminist legal scholars, will be an invaluable resource for anyone interested in how feminist theory has laid the legal foundations for greater gender equity in the United States and throughout the globe.'--Deborah L. Rhode, Stanford University, US

Download of the Week: "Grounding Originalism" by Baude & Sachs

 William Baude (University of Chicago - Law School) & Stephen E. Sachs (Duke University School of Law) have posted Grounding Originalism (Northwestern University Law Review, Forthcoming) on SSRN.  Here is the abstract:

How is the Constitution to be interpreted? The "positive turn" in legal scholarship treats constitutional interpretation, like statutory or contractual interpretation, as governed by legal rules grounded in actual practice. In our legal system, that practice is committed to a certain form of originalism: our system's official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we've argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided, or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Article offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual practice in those societies, including the particular aspects of legal practice we describe. This positive focus can indeed resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us, or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn't the official story of our law. Stripped of their jurisprudential confusion, however, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders, and to the changes over time that their law has recognized.

Highly recommended.  Download it while it's hot!