Legal Theory Blog

Legal Theory Bookworm: "Why Do We Still Have the Electoral College?" by Keyssar

The Legal Theory Bookworm recommends Why Do We Still Have the Electoral College? by Alexander Keyssar.  Here is a description:

With every presidential election, Americans puzzle over the peculiar mechanism of the Electoral College. The author of the Pulitzer finalist The Right to Vote explains the enduring problem of this controversial institution.

Every four years, millions of Americans wonder why they choose their presidents through the Electoral College, an arcane institution that permits the loser of the popular vote to become president and narrows campaigns to swing states. Most Americans have long preferred a national popular vote, and Congress has attempted on many occasions to alter or scuttle the Electoral College. Several of these efforts―one as recently as 1970―came very close to winning approval. Yet this controversial system remains.

Alexander Keyssar explains its persistence. After tracing the Electoral College’s tangled origins at the Constitutional Convention, he explores the efforts from 1800 to 2020 to abolish or significantly reform it, showing why each has failed. Reasons include the complexity of the electoral system’s design, the tendency of political parties to elevate partisan advantage above democratic values, the difficulty of passing constitutional amendments, and, importantly, the South’s prolonged backing of the Electoral College, grounded in its desire to preserve white supremacy in the region. The commonly voiced explanation that small states have blocked reform for fear of losing influence proves to have been true only occasionally.

Keyssar examines why reform of the Electoral College has received so little attention from Congress for the last forty years, and considers alternatives to congressional action such as the National Popular Vote Interstate Compact and state efforts to eliminate winner-take-all. In analyzing the reasons for past failures while showing how close the nation has come to abolishing the institution, Why Do We Still Have the Electoral College? offers encouragement to those hoping to produce change in the twenty-first century.

And from the reviews:

“Comprehensive and full of historical insight. Even specialists in political and constitutional history will encounter surprises…As another presidential election looms, [it] deserve[s] a wide readership.”―Eric Foner, London Review of Books

“America’s greatest historian of democracy now offers an extraordinary history of the most bizarre aspect of our representative democracy―the electoral college. In a clear and complete account of this anomaly’s origins and how it has survived, we can see the outlines for how it might be replaced, or at least improved upon. This is a brilliant contribution to a critical current debate, just in time to help guide effective reform.”―Lawrence Lessig, author of They Don’t Represent Us

“A rigorous historian of the institution.”―Steve Coll, New Yorker

“One of the chief virtues of Alexander Keyssar’s remarkable new book Why Do We Still Have the Electoral College? is that it conclusively demonstrates the absurdity of preserving an institution that has been so contentious throughout U.S. history and has not infrequently produced results that defied the popular will…A scholarly masterpiece…Keyssar has crafted an absorbing, if dispiriting, narrative about the durable obstacles to structural change in the United States.”―Michael Kazin, The Nation

“To fully explain how difficult the Electoral College is to dislodge, Keyssar chronicles more than two centuries of near-constant disputation and battle.”―Lee Drutman, Washington Monthly

“Perfectly timed…Keyssar tells a riveting and winding tale about attempts to reform the Electoral College and replace it with either a national popular vote or a distribution of electors in proportion to the state’s popular vote…His confrontation with racism in the U.S. as it relates to electoral reform―a topic that isn’t often viewed through this lens―is one of the strengths that make this book well worth the read.”―Kyle Scott, LSE Review of Books

“Sets out to explain the persistence of a technique that in public opinion polls has never accumulated support from a majority of Americans…[Keyssar’s] telling, artfully balancing broad themes and specific anecdotes, is both readable and valuable; knowing how we got here is a useful prerequisite to charting how to get where we want to be.”―Daniel B. Moskowitz, Washington Times

“This is a powerful work twice over. Its contributions to the debate over the Electoral College’s effects on our politics are profound. No less important, though, are the fascinating accounts of the changing rules governing presidential elections since the nation’s founding, a turbulent and largely unknown history. Keyssar’s lucid scholarship does justice to the past while it forcefully informs the present.”―Sean Wilentz, author of No Property in Man

“Keyssar, our great narrator of the American right to vote, is a national treasure who keeps giving us the history we need right when we need it. In this thrilling achievement, he tells the history of the Electoral College―how it has repeatedly eroded democratic values and how we might come to replace it in the twenty-first century. This is a dazzling contribution not just to American history but to the American future.”―Congressman Jamie Raskin (Maryland)

“A masterpiece. Keyssar shows us that America’s Electoral College has ever drifted on turbulent waters, surviving various near-misses at reform both local and national. He leaves readers with the humbling reminder that popular sovereignty can ossify the rules of election, even as he lays bare the political vulnerabilities of the Electoral College and the real possibilities for change.”―Daniel Carpenter, author of Reputation and Power

Download of the Week: "The Empirical Reasonable Person" by Jaeger

The Download of the Week is The Empirical Reasonable Person by Christopher Brett Jaeger.  Here is the abstract:

The reasonable person standard is central to law, and to tort law in particular. But there is much debate about what it means for a person to be reasonable. Some scholars argue that reasonableness is an economic prescription, dictating that people should take (only) cost-justified precautions. Others contend that reasonableness is grounded in community customs or norms. Surprisingly, this scholarly debate has always been more philosophical than empirical. Though it is often lay jurors who determine whether litigants’ behavior is reasonable, very little work has actually examined how laypeople make this determination.

This Article approaches the reasonableness debate from a fresh empirical perspective, examining the factors that influence whether laypeople judge behavior reasonable. Across four experiments, participants’ judgments consistently depended on information about the behavior of others—and never depended on whether precautions were cost-justified. These findings supply the first experimental evidence that lay decision makers understand reasonableness more in behavioral than in economic terms; indeed, they may not understand reasonableness in economic terms at all.

After describing the experimental findings, the Article unpacks some of their implications. First, the Article contends that tort law’s reasonable person standard both is and should be informed by observations and beliefs about others’ conduct. Second, the Article identifies challenges that arise from conceiving of the reasonable person in economic terms. Finally, the Article raises the possibility that decision makers’ understanding of reasonableness varies—and perhaps should vary—depending on the nature of the alleged negligence at issue.

Highly recommended.  Download it while it's hot!

Ordower on Avoiding Federal & State Constitutional Limits in Taxation

Henry Ordower (Saint Louis University - School of Law) has posted Avoiding Federal and State Constitutional Limitations in Taxation (Julio Homem de Siqueira, et al., eds. Princípios Constitucionais Tributários (Tax Principles and Constitutional Law) Belo Horizonte, Brazil, Forthcoming) (168 Tax Notes Federal 1447 (August 24, 2020) and 97 Tax Notes State 803 (August 24, 2020)) on SSRN.  Here is the abstract:

This article reviews some federal and state constitutional law challenges to tax legislation in the US and considers how taxing and other revenue raising legislation tends to withstand constitutional challenge.

Part I of this article examines instances in which the Supreme Court reviewed state taxing laws for conflict with the Constitution and overruled its earlier decisions in similar cases. One case involving a poll or capitation tax worked its way through the courts as the Constitution was being amended to prevent the states from using a poll tax in the future. Another case from 2018 resolves a longstanding tax collection and avoidance problem with state sales taxes. Part II focuses on a single longstanding Supreme Court precedent limiting federal tax law under the Constitution which Congress increasingly has not followed. The decision and recent congressional action is contextual in the current discussions of other taxing proposals. Part III considers some areas in which constitutional limitations exist but legislatures and courts seem to have no interest in addressing the limitations. Part IV concludes.

Stephanopoulos on Electoral Power

Nicholas Stephanopoulos (Harvard Law School) has posted The Sweep of the Electoral Power (Constitutional Commentary, Forthcoming) on SSRN.  Here is the abstract:

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts.

Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.

Highly recommended.

Sunstein on Post-Election Chaos

Cass R. Sunstein (Harvard Law School) has posted Post-Election Chaos: A Primer on SSRN.  Here is the abstract:

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. When the vote is close, and when people disagree about who won, the Constitution does not sort out the respective roles of the states, the Electoral College, Congress, and the Vice President. The Electoral Count Act of 1887 is the closest thing to a roadmap for handling controversies after election day, and on many issues, it offers helpful guidance. At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity. Taken together, the Constitution and the Electoral Count Act answer numerous questions, but they also leave important ones unanswered, including the role of the House and Senate amidst allegations of fraud and the proper role of the Vice President. This brief primer identifies the main answers and the principal open questions.

Highly recommended.

Jaeger on the Empirical Legal Person

Christopher Brett Jaeger (New York University School of Law) has posted The Empirical Reasonable Person (Alabama Law Review, Forthcoming) on SSRN.  Here is the abstract:

The reasonable person standard is central to law, and to tort law in particular. But there is much debate about what it means for a person to be reasonable. Some scholars argue that reasonableness is an economic prescription, dictating that people should take (only) cost-justified precautions. Others contend that reasonableness is grounded in community customs or norms. Surprisingly, this scholarly debate has always been more philosophical than empirical. Though it is often lay jurors who determine whether litigants’ behavior is reasonable, very little work has actually examined how laypeople make this determination.

This Article approaches the reasonableness debate from a fresh empirical perspective, examining the factors that influence whether laypeople judge behavior reasonable. Across four experiments, participants’ judgments consistently depended on information about the behavior of others—and never depended on whether precautions were cost-justified. These findings supply the first experimental evidence that lay decision makers understand reasonableness more in behavioral than in economic terms; indeed, they may not understand reasonableness in economic terms at all.

After describing the experimental findings, the Article unpacks some of their implications. First, the Article contends that tort law’s reasonable person standard both is and should be informed by observations and beliefs about others’ conduct. Second, the Article identifies challenges that arise from conceiving of the reasonable person in economic terms. Finally, the Article raises the possibility that decision makers’ understanding of reasonableness varies—and perhaps should vary—depending on the nature of the alleged negligence at issue.

Highly recommended.  Download it while it's hot!

Stein on Second-Personal Evidence

Alex Stein (Israel Supreme Court) has posted Second-Personal Evidence (Philosophical Foundations of the Law of Evidence (Christian Dahlman, Alex Stein and Giovanni Tuzet, eds., Oxford University Press, 2021, Forthcoming)) on SSRN.  Here is the abstract:

Before Hohfeld, legal insiders intuited that law is second-personal in all of its operations. After Hohfeld, they knew it. Hohfeld’s scheme of jural opposites and correlatives unfolded an analytical proof that every legal entitlement ultimately transforms into a person’s right, or lack thereof, to use state power in order to force another person into an action or an inaction.

This insight has important implications for the law of evidence as a system of rules that help courts ascertain the facts underlying the disputed entitlements. As the structure of those entitlements and the underlying interplay between the rightholder’s authority and the duty-bearer’s accountability are unchangeably second-personal, facts that courts need to ascertain and—critically—the procedures they must carry out in ascertaining those facts, ought to be second-personal as well. As a corollary, courts must only rely upon second-personal evidence, that is: upon information concerning the alleged jural relationship between the holder of the underlying entitlement and the bearer of the correlative duty or obligation.

This requirement originates from the right to autonomy enjoyed by every individual in a free society. Under the autonomy framework, an individual becomes accountable for her actions only when she abuses her autonomy by violating the autonomy of another person or a group of people—that is, when she commits a crime, a tort or fails to perform a contract, and by doing so causes harm to another person or to society at large. Consequently, evidence capable of proving one of those wrongs must show what the individual actually did and did not do and what happened to the victim of the alleged misdeed. To satisfy this fundamental requirement, evidence furnished against the alleged wrongdoer must be open to maximal individualized scrutiny: it cannot be purely statistical; and it also ought to allow the individual to examine whether it is applicable to the case at bar. This prerequisite should also benefit the victim of the alleged misdeed—the rightholder who claims to have a legal authority to impose punishment upon or exact compensation or another remedy from the alleged wrongdoer. Evidence purporting to negate the claims made by the alleged rightholder must focus strictly on her interactions with the defendant; and it must also be fully open to scrutiny aiming to ascertain its case-specific implications. This twin requirement defines the modus operandi of the Anglo-American system of evidence. Specifically, it explains and justifies the workings of the burden of proof doctrine, the rule against naked statistical evidence, and the rules regulating the admission of hearsay and character evidence.

Highly recommended.

Bruckner on Higher Education Quality

Matthew A. Bruckner (Howard University School of Law) has posted The Forgotten Stewards of Higher Education Quality (11 U.C. Irvine L. Rev. 1 - 41 (2020)) on SSRN.  Here is the abstract:

A “triad” of regulators is supposed to ensure that student loan borrowers are not harmed by low-value institutions of higher education, including exploitative profiteers operating fly-by-night or predatory institutions of higher education. The triad has failed. Millions of students have borrowed billions of federal student loan dollars that they won’t ever repay, causing borrowers to suffer needless economic harm and psychological anguish. But these harms were, are, and remain mostly preventable. This Article appears to be the first law review article to consider the states’ role in policing institutional quality and ensuring that student borrowers are not preyed upon by low-value institutions of higher education. It suggests concrete steps states could take, such as adopting a state version of financial responsibility scores, the gainful employment rule, or a cohort default rate metric, to avoid being characterized as the forgotten stewards of higher education quality.

Ganty on Poverty & Anti-Discrimination Law in Europe

Sarah Ganty (Yale Law School) has posted Poverty as Misrecognition: What Role for Anti-discrimination Law in Europe?  on SSRN.  Here is the abstract:

It is widely agreed on that victims of discrimination on traditional status grounds such as gender, race and religion are overrepresented among the poor and undereducated. People living in poverty also face discrimination because of their socioeconomic situation. Many national, European and international anti-discrimination provisions prohibit discrimination based on a person’s socioeconomic situation. It is striking, however, that this is barely applied in practice. There is little case law related to this at national, international and European levels. This situation is surprising, especially in the context of the financial retrenchment ongoing since 2008, and regarding the numerous accounts of direct and indirect discrimination affecting people who are unemployed, undereducated, poor or homeless. On the basis of domestic – Belgian, French and British – and European material, this paper argues that the prohibition of discrimination on grounds of social condition is an empowering legal tool which adds value to Human Rights law, EU law and Discrimination law in the protection of socioeconomically disadvantaged people – especially regarding issues of misrecognition – for four main reasons: the exclusive applicability of this ground in some cases, its important cross-cutting role in cases of multiple discrimination, the direct scrutiny of the socioeconomic position of the applicants which this ground implies, and its determining role in combating stereotypes, prejudice and stigma against poor and undereducated people.

Malawer on International Trade, China, Recent Cases, & the 2020 Election

Stuart Malawer (George Mason University (Schar School of Policy & Government)) has posted Trump, Recent Cases and the 2020 Presidential Election (China & WTO Rev. 2020:2; 407-416) on SSRN.  Here is the abstract:

I will discuss recent U.S. Supreme Court cases as well as international trade cases decided this year by the specialized international trade courts in the United States. I will then discuss recent U.S. trade action concerning China and put this in the context of President Trump’s generalized approach to China and international trade. I will conclude with a few observations pertaining to the upcoming presidential election in the United States.

The U.S. Supreme Court recently ruled on two highly politicized and historic cases on executive power. Observers have commented that these decisions have restricted excessive claims of executive authority. However, these same observers have overlooked a United States Court of International Trade decision made at about the same time that limits presidential authority on trade issues.

These cases ought to be placed in the context of even more recent restrictions President Trump has placed on Chinese trade and investment activities. Additionally, those restrictions should be seen in the broader context of President Trump’s generalized hatred of laws and rules, both domestic and international, which is being especially accentuated in the run-up to the presidential election this November.

Elliott on Associations & Cities as Private Attorneys General

Heather Elliott (University of Alabama - School of Law) has posted Associations and Cities as (Forbidden) Pure Private Attorneys General (61 Wm. & Mary L. Rev. 1329 (2020)) on SSRN.  Here is the abstract:

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to the organization’s purpose.

Yet when Hunt interacts with the complexities of modern standing doctrine, it becomes clear that many associations, particularly those that are large or have broad purposes, can show standing for virtually any lawsuit. Moreover, recent scholarship has plausibly suggested that municipalities can be treated as associations under Hunt; municipal purposes are so broad, and some cities are so big, that they could litigate almost any case they wish. But the purpose of the ban on pure private attorneys general is to avoid giving any plaintiff a roving commission to enforce the law. Thus, Sierra Club and Hunt are in serious tension.

This unnoticed conflict is further evidence of the notorious incoherence of Article III standing itself and might sensibly trigger a rethinking of the entire doctrine. Such reform seems highly unlikely, however, given nearly fifty years of standing’s reign. Alternatively, Congress—which is far better placed than the courts to make necessary factual determinations—could take steps to resolve the conflict between Sierra Club and Hunt. But Congress has other priorities. More modestly, the Court could make some changes at the margins of Hunt and Sierra Club, to ameliorate the tension between the two strands of standing doctrine.

Colón-Ríos on Rousseau's Constitutionalism

Joel I. Colón-Ríos (Victoria University of Wellington - Faculty of Law) has posted Review of Eoin Daly's Rousseau's Constitutionalism: Austerity and Republican Freedom ("Review of Eoin Daly’s Rousseau’s Constitutionalism: Austerity and Republican Freedom" Cambridge Law Journal (2019) 78(2) pp 471-474) on SSRN.  Here is the abstract:

Perhaps more than any other social contract theorist, Rousseau is a frequent target of constitutionalists. His system of popular sovereignty can be understood as exemplifying all that is wrong with unlimited political power. Indeed, constitutionalism, as a theory of limited government, is the perfect antidote for the type of dangers associated with an uncontrolled Rousseauian sovereign. Eoin Daly's Rousseau's Constitutionalism presents an interesting and persuasive challenge to that approach. Daly argues that Rousseau should be read as advancing a distinct constitutionalist ideal directed at protecting citizens not only from the domination of arbitrary state power, but from the different (and not necessarily legal or political) conditions that make self-government impossible. Daly advances this argument in five chapters that engage both with most of Rousseau's published writings and with some of the main works on the subject in the secondary literature.

Sopko on Snap Removal

Adam B. Sopko (Northwestern University - Northwestern Pritzker School of Law) has posted Swift Removal (Federal Courts Law Review (2020 Forthcoming)) on SSRN.  Here is the abstract:

“Snap removal” is a litigation tactic that removes a state court action naming a forum defendant before they are served. Courts are split on the issue for good reason, as the removal statute would normally bar such an action from a federal forum. Those affirming the practice assert the statute’s plain meaning compels removal. Those rejecting it reason that a purely textual construction allows jurisdiction manipulation that is inconsistent with the statute’s purpose.

Many commentators conceive of snap removal as a relatively rare occurrence that does not warrant either judicial or legislative intervention. This Article presents original empirical research and analysis that suggests that claim is incorrect: defendants are using the tactic much more often than its advocates attest. It also argues that we have seen choices like this before—when courts construe statutes in a way that incentivizes gamesmanship and expands federal authority— and the Supreme Court rejected them nearly a century ago in Erie Railroad Co. v. Tompkins.

This Article makes two contributions. First, it presents the first empirical analysis of snap removal since 2014. The data show that the tactic has been used nearly twice as often in subsequent years and that, contrary to what many of its defenders posit, it is used primarily by forum defendants. Second, the Article proposes a solution, based upon lessons learned from the Court’s path to Erie, that accounts for the political economy surrounding snap removal. Existing case law and statutory authority compel courts intervene—as they did with general law after Swift v. Tyson—and correct a bug that places substantial stress on values central to the American legal system.

Phillips & Yoo on the Original Meaning of "High Crimes and Misdemeanors"

James Cleith Phillips (Chapman University, The Dale E. Fowler School of Law) & John Yoo (University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace) have posted Your Fired: The Original Meaning of Presidential Impeachment (Southern California Law Review, Vol. 94, No. 4, 2021) on SSRN.  Here is the abstract:

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of presidential impeachment are again salient. Unlike other constitutional provisions, the Impeachment Clause has generated neither much historical practice nor case law with regard to the removal of a President. The Supreme Court has deemed impeachment the ultimate political question. Thus, the original meaning takes on great weight. Further, previous scholarship has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. This article is the first to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law. Not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established legal term of art in Great Britain. The article then applies these findings to the impeachment of President Trump, provides an in-depth analysis of the proceeding in light of the Constitution’s original meaning, and critiques arguments made on both sides.

Highly recommended.

Barclay on an Economic Approach to Religious Exemptions

Stephanie H. Barclay (Notre Dame Law School) has posted An Economic Approach to Religious Exemptions (Florida Law Review, Forthcoming) on SSRN.  Here is the abstract:

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics.

This Article thus poses a thought experiment: how would normative rhetoric and doctrinal assessments change if one viewed religious externalities through the lens of economic theory? Such a perspective offers three novel normative insights. First, the mere existence of a religiously caused externality does not provide a sufficient justification for government restriction of religious rights, as because externalities are always reciprocal. Second, the government should be cautious about coercing involuntary transactions where idiosyncratic valuation or high transaction costs are involved. And third, exploring outcomes that decrease net harm can highlight government policies that are themselves creating harm. In other contexts, this analysis can force decision-makers to confront more candidly problems of incommensurability, particularly when it comes to dueling claims of dignitary harms.

An economic lens can also provide a positivist account of multiple aspects of a religious exemption doctrinal framework in the context of strict scrutiny. These include balancing competing harms in recognition of reciprocal externalities, requiring the government to have a justification for coercing involuntary transactions in a similar way that property rules would, and assessing carefully whether alternatives exist to avoid harm altogether. Indeed, this latter inquiry closely resembles the type of analysis courts engage in under the “less restrictive alternatives” element of the strict scrutiny analysis.

While economic theory does not provide answers to all of the difficult questions in these religious exemption debates, it can provide a clinical method of analyzing hot-button issues involving seemingly intractable conflicts. And to the extent that harm is a relevant normative consideration, this Article asserts that an under-theorized reliance on harm on just one side of the ledger, advocated under the current third-party harm theories, is a normatively unpersuasive approach.

Highly recommended.

Mendenhall on the Relationship Between the Articles of Confederation & the Constitution

Slade Mendenhall (George Mason University, Department of Economics; George Mason University, Antonin Scalia Law School) has posted Was Washington's First Term Legitimate?: Texas v. White and the Constitutional Convention on SSRN.  Here is the abstract:

When scholars and professors of constitutional law recount the origins of the Union, two conflicting theoretical accounts are often presented. In the first theory, the Constitutional Convention of 1787 was convened, as the Founders presented at the time, under the authority of the Articles of Confederation, with the Constitution created under the authority to amend the Articles. In the alternate theory, the Articles were scrapped altogether, and the Convention proceeded of its own will, with the Constitution emerging as an artifact of political realism. In a landmark Reconstruction Era case, Texas v. White, Justice Salmon P. Chase adopted the former view, in which the Articles are seen as preserved, forming a backbone of continuity stretching forth from the time of their adoption. This article traces the logical implications of these theories, concluding that the Articles of Confederation’s unanimity requirement combined with two states' late ratification of the Constitution would, under Justice Chase's preferred theory, render George Washington’s first term as president, and any legislation it produced, a nullity. Ironically, it concludes, the safer and more conservative theory is one in which the Constitutional Convention is understood as an ultra vires act by the Framers, rebelling first against the English Crown and, second, against themselves.

Mullins on Protected Reasons and Precedent

Rob Mullins (The University of Queensland - T.C. Beirne School of Law) has posted Protected Reasons and Precedential Constraint (Legal Theory, Forthcoming) on SSRN.  Here is the abstract:

According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.

Highly recommended.

Slowinski on Software Protection

Peter R. Slowinski (Max Planck Institute for Innovation and Competition) has posted Rethinking Software Protection (Draft chapter. Forthcoming in: J.-A. Lee, K.-C. Liu, R. M. Hilty (eds.), Artificial Intelligence & Intellectual Property, Oxford, Oxford University Press, 2020, Forthcoming) on SSRN.  Here is the abstract:

The core of artificial intelligence (AI) applications is software of one sort or another. Of course, if software were a mere ingredient, we may have had AI applications already decades ago. After all, it was Allen Touring who in the 1950s developed the first test for AI and concepts surrounding it. But while available data and computing power are important for the recent quantum leap in AI, there would not be any AI without computer programs or software. Therefore, the rise in importance of AI forces us to take — once again — a closer look at software protection through intellectual property (IP) rights, but it also offers us a chance to rethink this protection, and while perhaps not undoing the mistakes of the past, to at least adapt the protection so as not to increase the dysfunctionality that we have come to see in this area of law for the past decades. To be able to establish the best possible way to protect — or not to protect — the software in AI applications, this chapter starts with a short technical description of what AI is, and readers are referred to other chapters in this book for a deeper analysis (1). It continues by identifying those parts of AI applications that constitute software to which legal software protection regimes may be applicable (2), before outlining those protection regimes, namely copyright and patents (3). The core part of the chapter analyses potential issues regarding software protection with respect to AI using specific examples from the fields of evolutionary algorithms and of machine learning (4). Finally, the chapter draws some conclusions regarding the future development of IP regimes with respect to AI (5).

Thro on the Supreme Court & Academic Freedom

William E. Thro (University of Kentucky) has posted Follow the Truth Wherever It May Lead: The Supreme Court’s Truths and Myths of Academic Freedom (University of Daytona Law Review, Vol. 45, No. 2, 2020) on SSRN.  Here is the abstract:

Universities have historically been fierce guardians of intellectual debate and free speech, providing an environment where students can voice ideas and opinions without fear of repercussion.” Quite simply, “knowledge cannot be advanced unless existing claims to knowledge can with freedom be criticized and analyzed.” As the best contemporary statement of academic freedom explains, “the ideas of different members of the University community will often and quite naturally conflict,” but an institution should not “attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” Indeed, “concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some” individuals.

The First Amendment provides broad protection for academic freedom, but every institution, “has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.” “[F]ree speech is bred into the bones of a modern university” but “[u]nless the campus zest for censorship is combatted now, what we have always regarded as a precious inheritance could be eroded beyond recognition and a soft totalitarianism could become the new American norm.”

Of course, defining academic freedom raises other questions about whether academic freedom is universal, or grants greater protections for faculty, or allows the university to defy the government. First, the Chicago Statement emphasizes “all members of the University community [have] the broadest possible latitude to speak, write, listen, challenge, and learn” and “to discuss any problem that presents itself.” Academic freedom is not limited to the faculty, but extends to the students, non-faculty scientists and researchers, and even administrators. If you are part of the university community, you enjoy academic freedom. Second, the American Association of University Professors, while not necessarily denying academic freedom to non-faculty, envisions “enhanced academic freedom” for faculty member. With enhanced academic freedom, “a university professor possesses a constitutional right to determine for himself, without the input of the university (and perhaps even contrary to the university's desires), the subjects of his research, writing, and teaching.” Third, late twentieth century court decisions suggested there was an “institutional academic freedom.” Although public universities are completely free from control by the Church or Synagogue or Mosque or private corporation, state institutions may have rights against its creating State or the National Government. Just as a private university, like any private entity, can resist the government, public universities may be able to resist state or federal government officials.

Yet, the Constitution takes a different approach to the questions of whether academic freedom is universal, or grants greater protections for faculty, or allows the university to defy the government. As recent decisions of the Supreme Court of the United States illustrate, academic freedom is both a constitutional truth and a constitutional myth. First, the Chicago Statement’s notion of academic freedom for all is a constitutional truth for public universities. Regardless of whether you are a student, a staff researcher, a faculty member, or a senior administrator, institutional officials may not punish you for expression, force you to conform, or require you to subsidize causes you oppose. In a sense, liberty has never been greater on a public campus. Second, enhanced academic freedom for faculty members is a constitutional myth. In terms of constitutional rights, faculty members at state universities are no different than ordinary public employees. Third, with respect to a state university and its creating State, institutional academic freedom is a constitutional myth. Yet, as to the relationship between a state university and National Government, institutional academic freedom is a constitutional truth. The purpose of this Article is to demonstrate how the Supreme Court has recognized the constitutional truths and destroyed the constitutional myths of academic freedom. This purpose is accomplished in three parts. Part I explores how the recent Supreme Court decisions in a variety of First Amendment contexts guarantee academic freedom for the entire university community. In particular, it focuses on decisions concerning offensive speech, coercive expression, compelled subsidies, student organizations, public employee free speech effectively set up academic freedom for the entire public university community. Part II explains why the idea of enhanced academic freedom for faculty is a constitutional myth. Faculty members have the same rights as other public employees—no more and no less. At the same time, the Supreme Court’s decision in Garcetti v. Ceballos may diminish constitutional protections for faculty speech in the employment capacity. Part III examines why institutional academic freedom is a constitutional myth at the state level, but a constitutional truth at the federal level.

Dagan & Heller on Specific Performance

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) & Michael Heller (Columbia University - Columbia Law School) have posted Specific Performance on SSRN.  Here is the abstract:

When should specific performance be available for breach of contract? This question has engaged generations of legal economists and philosophers, historians and comparativists. Yet none of these disciplines have provided a persuasive answer. This Article provides a normatively-attractive and conceptually-coherent account. Respect for the autonomy of the promisor’s future self explains why expectation damages are, and should be, the ordinary remedy for contract breach. Also, this same normative commitment to the contracting parties’ autonomy best justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, where it is not. For the most part, the boundaries of specific performance track the common law’s underlying commitment to autonomy. But not entirely. There’s still work to be done, and this Article points the way with concrete doctrinal reforms that can better align specific performance with its animating principles.

Highly recommended.

Frye on Court Packing

Brian L. Frye (University of Kentucky - College of Law) has posted Court Packing is a Chimera (Cardozo Law Review, Forthcoming) on SSRN.  Here is the abstract:

Everything old is new again. In the late 1930s, FDR threatened to "pack" the Supreme Court with new justices, in order to break its conservative majority. Today, the commentariat has revived the idea of "court packing," arguing the Democrats should try it again. But is court packing even politically necessary? And is the real problem the excessive power of an undemocratic Court? Maybe we shouldn't rely on constitutional law to solve political problems.

Recommended.

Michaels on Retroactivity & Appointments

Andrew C. Michaels (University of Houston Law Center) has posted Retroactivity and Appointments (Loyola University Chicago Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The current law of retroactivity in the Appointments Clause context is confused, resulting in significant practical consequences, such as when courts unnecessarily invalidate prior administrative decisions after judicially removing an unconstitutionality, even where the prior statutory misrepresentation had no apparent effect on the invalidated actions. The Supreme Court has recently been active in the Appointments Clause area without discussing the attendant retroactivity issues, which lower courts are confronting with increased frequency. This article reviews the doctrine of retroactivity and appointments, discusses the relevant academic literature, and proposes a coherent framework for courts to use when faced with these important questions.

This article also describes how a misunderstanding of the law of retroactivity and appointments in the Federal Circuit's recent Arthrex decision has led to dozens of wasteful and unnecessary remands for rehearing before the United States Patent and Trademark Office, and discusses how similar issues with the Consumer Financial Protection Bureau may play out in light of the Supreme Court's recent decision in Seila Law.

Brownstein on Originalism & the Religion Clauses

Alan E. Brownstein (University of California, Davis - School of Law) has posted The Reasons Why Originalism Provides a Weak Foundation for Interpreting Constitutional Provisions Relating to Religion (Cardozo L. Rev. De Novo 196) on SSRN.  Here is the abstract:

Contemporary debates about the meaning of the Free Exercise Clause and the Establishment Clause of the First Amendment often are grounded on conflicting contentions about the original understanding of these constitutional provisions. There are various explanations for this emphasis on history in interpreting these specific constitutional clauses. To begin with, the Supreme Court’s jurisprudence in this area has focused on history in interpreting the religion clauses. It is also the case that many scholars and jurists are committed to some form of originalism as the controlling methodology for interpreting constitutional text. Finally, questions relating to the relationship between church and state were clearly of interest to the founders and at various times had been the focus of their political speech and actions.

The purpose of this brief essay is to challenge this convention. I suggest that whatever may be the justifications for, and utility of, employing originalism as a methodology for interpreting other constitutional provisions, it is a particularly poor approach to adopt for determining the meaning of the religion clauses of the First Amendment. I do not suggest that an historical analysis is irrelevant to understanding what the religion clauses mean. It certainly sets a foundation for further discussion. I argue simply that there are important reasons why originalism is particularly ill suited for resolving a great many constitutional disputes relating to church-state relationships in our society today.

Ahmed on Constitutional Conventions

Ashraf Ahmed (Columbia Law School) has posted The Conventional Constitution on SSRN.  Here is the abstract:

The past decade has prompted a surge of scholarship on constitutional conventions: informal practices thought to be constitutionally significant. The resulting literature reflects a wide range of methods and priorities. But it has no underlying theory of what makes a constitutional convention conventional or constitutional. Drawing on philosophy, this Article advances such a theory, explaining what constitutional conventions do and what they are like. It shows that constitutional conventions are normative, contingent, and arbitrary practices that implement constitutional text and principle. And it animates constitutional conventions through case studies of blue slips, court-packing, and executive non-interference with law enforcement. It concludes by considering the role of constitutional conventions in Supreme Court doctrine and theories of constitutional interpretation that consult historical practice as a source of law.

Highly recommended.

Dagan & Zipursky on the Distinction Between Private & Public Law

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) & Benjamin C. Zipursky (Fordham University School of Law) have posted The Distinction Between Private Law and Public Law (Research Handbook on Private Law Theories (Hanoch Dagan & Benjamin Zipursky eds., 2021 Forthcoming)) on SSRN.  Here is the abstract:

Twentieth Century legal theorists – especially the American legal realists – provided vigorous critiques of the putative distinction between private law and public law, persuading jurists that the distinction relied upon legal formalism. In the latter third of the Twentieth Century, the law and economics school constituted a focused and dominant version of the legal realist capture of private law theory. By the 1990s, however, new forms of private law research developed, many of which we characterize as instances of “neo-realism.” And philosophical theorists brought private law theory full circle, re-embracing the distinction between private law and public law. These views are depicted here as forms of “neo-conceptualism,” and they are in many ways the polar opposite of neo-Realism. In this Chapter, Dagan and Zipursky each defends a view of the private/public distinction that falls in between the neo-realists and the neo-conceptualists. Dagan’s relational justice theory is a form of neo-realism highly receptive to the deontological concerns of the neo-conceptualists. Zipursky’s pragmatic conceptualism is a form of neo-conceptualism sensitive to the pragmatic and modernist concerns of legal realism.

Highly recommended.

Broughton & Leiter on Naturalized Epistemology & Evidence Law

Gabe Broughton (Princeton University) & Brian Leiter (University of Chicago) have posted The Naturalized Epistemology Approach to Evidence (Forthcoming in Dahlman, Stein, and Tuzet, eds., Philosophical Foundations of Evidence Law (OUP 2021)) on SSRN.  Here is the abstract:

Studying evidence law as part of naturalized epistemology means using the tools and results of the sciences to evaluate evidence rules based on the accuracy of the verdicts they are likely to produce. In this brief chapter, we introduce the approach and address skeptical concerns about the value of systematic empirical research for evidence scholarship, focusing, in particular, on worries about the external validity of jury simulation studies. Finally, turning to applications, we consider possible reforms regarding eyewitness identifications and character evidence.

Highly recommended.  

For readers who are unfamiliar with naturalized epistemology, I suggest Naturalism in Epistemology from the Stanford Encyclopedia of Philosophy by Patrick Rysiew as a starting point.  And everyone interested in evidence theory should read "Epistemology Naturalized" by Quine, found in Ontological Relativity and Other Essays (link to the Amazon page).

Madsen & Slosser on Cognitive Linguistics & the Categories of International Law

Mikael Madsen (University of Copenhagen - iCourts - Centre of Excellence for International Courts; University of Copenhagen - Faculty of Law) & Jacob Livingston Slosser (University of Copenhagen - iCourts - Centre of Excellence for International Courts) have posted Institutionally Embodied Law: Cognitive Linguistics and the Making of International Law on SSRN.  Here is the abstract:

This chapter examines language’s role in the formation of legal categories. It situates itself within the tension that exists between the certainty that seems to exist when applying legal categories (as realised through principles, rules or standards) and the ambiguity that necessarily comes with them. This chapter holds that legal categories are not just subject to whims of negotiated power dynamics and firm political choices but under-girding those choices are the dynamics of how human beings - i.e. lawyers, lawmakers, jurists, judges, and their respective staffs – operationalise the cognitive processes that enable category building and their application to legal decisions. We focus on the process of law making by cognitive category making. We promote a methodological intervention to examine the processes of classification and categorisation of legal principles to explore the politics of legal practice in action as, in part, an embodied cognitive process. Although public hearings, consultation, and deliberation are all part of the legal process, we focus on how law is performed as a written exercise with the goal of understanding the law through its use of linguistic choices. The result an exploration of how that language displays the cognitive underpinnings of legal category making and the development of legal institutions, legal rules and, more broadly, the law itself.

Very interesting and recommended.

Legal Theory Lexicon: Meta-Level Arguments

Introduction

Many legal questions involve the application of settled law to the facts of a particular case.  But there are other cases, where the law is unsettled, either because there is no controlling precedent or because there is an going dispute about whether the controlling decision is correct.  This topic is discussed in Legal Theory Lexicon 095: Open and Contested Questions of Law.  Sometimes the framework for the resolution of an unsettled question of law is well-established: the open or contested question of law can be settled at the issue level.  Other times, there are disputes about how to settle the open or contested question: for example, if the question is one of statutory interpretation and construction, the resolution of the question may hinge on whether the methodology employed by the court is textualist, purposivist, intentionalist, or something else.  We can call this kind of question, a "meta-level question."  This topic is discussed in Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions.

Law students spend a lot of time learning the legal doctrine and developing the ability to apply the law to complex fact patterns.  This is the skill that is tested by the standard issue-spotter exam.  And many law students are exposed to open and contested questions of law.  Some professors treat such questions as an opportunity to express their own opinions as to how the questions should be resolved; others may ask students to take a position and make an argument on the open or contested question.  But in the first year of law school, it is relatively rare for students to get a systematic exposure to meta-level questions.  And a systematic exposition of the kinds of arguments that can be advanced at the meta-level is even rarer.

This entry in the Legal Theory Lexicon offers an introduction to meta-level argumentation.  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Internal and External Critique of Meta-Level Theories

One useful distinction is usually expressed by differentiating "internal critique" from "external critique."  An internal critique of a meta-level theory accepts the basic premises of theory but shows that the theory or the justifications for the theory fail from this internal perspective.  There are many different kinds of internal critique.  One simple mode of internal critique challenges the validity of the argument for a meta-level position.  For example, it might be argued that the fact that the constitutional text is written leads to the conclusion that it should be interpreted on the basis of its original meaning.  One frequent criticism of this argument is that the conclusion does not follow from the premises.  Another kind of internal critique is based on an internal inconsistency is a theoretical position.  For example, a theory that asserted that common-law decisions are judge-made law, and that hard cases in the common law are decided by following precedent would be internally inconsistent.

External critique operates on the basis of premises that are outside of the theory being criticized.  For example, textualism might be criticized on the ground that legislatures are poorly equipped to understand the legal consequences of the statutes they right.  Therefore, textualism will lead to interpretations of statutory language that produce unintended consequences and bad policy.  Or a theory of the common-law might be based on a deontological theory of morality; judges should decide cases on the basis of considerations of justice and fairness.  A critique of this theory might start with the rejection of deontology in favor of consequentialism; this move then could lead to the argument that decisions based on fairness will lead to bad consequences and hence to bad decisions.

Public Reasons and Deep Theories

Another useful distinction differentiates between "public reasons" and "deep theories."  Let's begin with a list of theoretical positions that are "deep" in the sense specified by this distinction:

• Utilitarianism--the view that ultimate value is utility, which might be understood as the maximization of pleasure and the minimization of pain.  (But there are other forms of utilitarianism.)
• Social Contract Theory--the view that government should have all and only those powers that would be granted to government by persons forming a social contract in the state of nature.
• Egalitarianism--the view the most important criterion for judging the rightness or wrongness of a legal norm is the effect the norm will have on equality.  (Note that there can be many different views about what kind of equality counts.)

The reasons provided by these deep theories can be contrasted with reasons that are "shallow" in the sense that the avoid commitment on ultimate questions of morality or political philosophy.  Rawls used the phrase "public reason" to describe justifications that can be viewed as reasonable by persons who differ about the deep questions.  Here are some examples:

• Equal Citizenship--all citizens should be viewed as political equals and therefore no citizen should be denied the basic rights of citizenship such as the rights to vote and hold office.
• The Relevance of the General Welfare--the general welfare is relevant to questions of law and public policy, even if it is not the only relevant factor.  Hence, a meta-level theory that would lead to disastrous consequences for society as a whole can be argued against on that ground.

There is a Legal Theory Lexicon entry on public reasons: Legal Theory Lexicon 009: Public Reason.  One advantage of arguments based on public reasons is that may be able to produce an "overlapping consensus" or "incompletely theorized agreement."  Deep reasons fair badly on this score, because almost any deep theory of ethics or political morality is rejected by many or even most citizens. This topic is discussed in the following Lexicon entry:  Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements.

Outcome Arguments and Process Arguments

Another useful distinction can be made between outcome-based arguments and process based arguments.  An outcome based argument is one that looks to the consequences of adopting a meta-level theory.  The following are examples of outcome-based arguments:

• Originalism will lead to bad outcomes because the Constitution is very old and adherence to its original public meaning would hobble the regulatory state and result bad policy on many issues, including climate, pollution, and the regulation of financial institutions.
• Statutory intentionalism will lead to bad outcomes, because the actual intentions of Congress are motivated by the power of special interest groups and not good public policy.

Process arguments focus on the way that decisions are made.  For example:

• Statutory textualism is more legitimate than rival views, because it requires judges conform to legal norms made by elected officials.  Purposivism is less legitimate, because it requires judges to adopt statutory constructions that conform to the judge's own views about what the purpose of the statute should have been.
• Common law constitutionalism is better than originalism, because judges are institutionally competent to engage in common law reasoning but they are not trained in the historical methods required to discern original meaning.

The Method of Reflective Equilibrium

There is a Legal Theory Lexicon entry on "reflective equilibrium": Legal Theory Lexicon 009: Public Reason.  The basic idea of this method is that meta-level positions can be justified using the following procedure.  We start with our intuitive beliefs, both about general principles and particular cases.  We then examine these beliefs to see if they are consistent.  For example, we might start out with a belief that Roe v. Wade was rightly decided because it protects a fundamental right of privacy and another belief that Lochner v. New York was wrongly decided because it protected an unenumerated constitutional right that could not be justified on the basis of the constitutional text.  If the right to privacy is also an unenumerated right that cannot be justified on the basis of the constitutional text, we would then try to reconcile these two beliefs.  If at the end of the day, they cannot reconciled, then one belief or the other would need to be modified.  For example, we might jettison the idea that unenumerated rights are illegitimate.  Or we might instead conclude that such rights are legitimate if they ensure political equality, but not legitimate otherwise.  This process continues until our beliefs about both particular cases and general principles are mutually supportive and consistent.  At that point we have reach what Rawls called "reflective equilibrium."

The method of reflective equilibrium can be contrasted with what Rawls called "the method of geometry."  The analogy to geometry is designed to bring out the possibility that meta-level theories might be justified by arguments from "first principles."  If there were a set of principles of political morality or normative legal theory that were self-evidently true, it might be possible to justify a meta-level theory by deductive argument.  The practical problem with such a theory is that there does not seem to be any agreement on what the self-evidence premises of political morality are.

Conclusion

This entry in the Legal Theory Lexicon introduced some very general and basic ideas about meta-level arguments.  Such arguments operate at a very abstract and general level.  So, it is not surprising that the distinctions that we have examined are quite abstract and general as well.  Nonetheless, I hope that this Lexicon entry has provided a set of tools for thinking about meta-level argumentation.

Related Lexicon Entries

• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 009: Public Reason
• Legal Theory Lexicon 010: Deontology
• Legal Theory Lexicon 018: Justice
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
• Legal Theory Lexicon 046: Legitimacy
• Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract
• Legal Theory Lexicon 077: Living Constitutionalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 095: Open and Contested Questions of Law
• Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions
• Legal Theory Lexicon 069: Reflective Equilibrium

(This entry was first created on October 18, 2020.)

Legal Theory Bookworm: "Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law" by deGuzman

The Legal Theory Bookworm recommends Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law by Margaret M. deGuzman.  Here is a description:

The most commonly cited justification for international criminal law is that it addresses crimes of such gravity that they "shock the conscience of humanity." From decisions about how to define crimes and when to exercise jurisdiction, to limitations on defences and sentencing determinations, gravity rhetoric permeates the discourse of international criminal law. Yet the concept of gravity has thus far remained highly undertheorized.

This book uncovers the consequences for the regime's legitimacy of its heavy reliance on the poorly understood idea of gravity. Margaret M. deGuzman argues that gravity's ambiguity may at times enable a thin consensus to emerge around decisions, such as the creation of an institution or the definition of a crime, but that, increasingly, it undermines efforts to build a strong and resilient global justice community. The book suggests ways to reconceptualize gravity in line with global values and goals to better support the long-term legitimacy of international criminal law.

Download of the Week: "Lawyers and Historians Argue About the Constitution" by Balkin

Jack M. Balkin (Yale University - Law School) has posted Lawyers and Historians Argue About the Constitution (Constitutional Commentary, Volume 35 (forthcoming 2020)) on SSRN.  Here is the abstract:

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.

Highly recommended.  Download it while it's hot!

Harrison on Christian Accounts of Religious Liberty

Joel Harrison (Sydney Law School, University of Sydney) has posted Christian Accounts of Religious Liberty: Two Views of Conscience (Brigham Young University Law Review, Forthcoming) on SSRN.  Here is the abstract:

This article examines two views of conscience found with Christian religious liberty discourse. First, the inter-subjective view of conscience. This contains two claims: (a) conscience should not be coerced because of the end to which religion or conscience is directed - the free offering of the person to God; and (b) conscience ultimately serves (and its exercise is judged by its consistency with) a social end. Second, the ethical freedom view of conscience. This also holds that conscience should not be coerced, but frames that requirement as part of facilitating the individual's capacity to determine his or her own ends. The article considers how each of these views of conscience responds to pluralism or religious difference, how each understands the ends of political community, and how each characterises the role of political authority.

Walen on Responsibility for Forming One's Self

Alec D. Walen (Rutgers School of Law; Rutgers, The State University of New Jersey - Department of Philosophy) has posted On Blame and Punishment: Respect and Responsibility for Forming a Self on SSRN.  Here is the abstract:

Accounts of punitive blame — blame that is the proper basis for punishment — tend to fall into two camps: those that focus on choices (understood broadly to include options that could have been chosen even if not considered) and those that focus on quality of will or character. Doug Husak argues in favor of a reason-responsive view of choice, according to which the paradigm of blameworthy choice is taking oneself to have sufficient reason not to do something but being too weak willed not to do it. This view implies that negligent behavior, in which an agent should be but is not aware of reasons not to do what she does, is not blameworthy. I argue here that this account of blame is internally inconsistent. I offer in its place an Aristotelian account of becoming responsible for the kind of person one is as a precondition for blame. This is a different kind of choice view according to which an agent who acts wrongly is not blamed for the kind of person she is; she is blamed for her wrongful choices, but only insofar as she had a fair opportunity to become the kind of person she is rather than the kind who would not make them.

Leiter on "Legality" by Shapiro

Brian Leiter (University of Chicago) has posted Critical Remarks on Shapiro's Legality and the 'Grounding Turn' in Recent Jurisprudence on SSRN.  Here is the abstract:

The essay discusses some difficulties in Scott Shapiro’s LEGALITY (2011). Many are well-known among specialists, but I set them out systematically here for the benefit of non-specialists. These include the mischaracterization of core jurisprudential questions in terms of “grounding” relations, which unfortunately erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept; but also the false claims that:

(1) “knowledge of law is normative” such that to say X has “a legal right is to draw a normative conclusion”;

(2) officials have a legal obligation to follow the rule of recognition and;

(3) Hart commits a “category mistake” in his discussion of social rules.

The essay also criticizes Shapiro’s discussion of jurisprudential methodology and his (Dworkinian) attempt to show that the answer to jurisprudential questions matters to how courts should decide cases.

Recommended.

Balkin on Lawyers and Historians Arguing About the Constitution

Jack M. Balkin (Yale University - Law School) has posted Lawyers and Historians Argue About the Constitution (Constitutional Commentary, Volume 35 (forthcoming 2020)) on SSRN.  Here is the abstract:

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.

Highly recommended.  Download it while it's hot!