Legal Theory Blog

Monday CalendarUCLA School of Law:

Monday Calendar

UCLA School of Law: Kurt Lash, The Lost History of the Ninth Amendment. Highly recommended! Here is a taste:
A comprehensive look at the lost history of the Ninth Amendment is presented in two articles, Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331 (2004), and Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597 (2005). This short essay briefly summarizes some important aspects of that history. Those interested in the subject are encouraged to read the full articles.

Given that the states had existed for more than a decade under the Articles as thirteen “free and independent states, it is no surprise that the degree to which the proposed Constitution would diminish (or eradicate) individual state autonomy was a major issue in the ratification debates. Despite Federalist assurances to the contrary, Anti-federalists warned of the potential consolidation of the states under a national government with unlimited power. Although a sufficient number of states eventually agreed to ratify the Constitution, a number of them did so with the understanding that the scope of federal power would be strictly limited. Several state conventions included statements of principle along with their notice of ratification declaring their understanding that all non-delegated powers, jurisdictions and rights were reserved to the states.


Northwestern International Law: Larry Helfer, Professor of Law, Vanderbilt University, "Exit Treaties". Here is a taste:

[B]uried at the back of most modern international agreements, and often overlooked by scholars, are provisions that call into question international law’s unequivocal command that states must either obey treaties or cooperate in abrogating or revising them. Such provisions, known as denunciation or withdrawal clauses, permit a state to “exit” from a treaty that the state had previously ratified and that is otherwise valid and in force.

Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in an intergovernmental organization.5 Denunciation and withdrawal are fundamentally unilateral acts. They do not require the consent or approval of other states, and may often be effectuated simply by providing notice to the other parties. Moreover, a state that invokes these clauses to quit a treaty occupies a very different position from a state that breaches its treaty commitments. An exiting state faces different burdens and benefits, different prospects of being sanctioned, different reputational consequences, and different responses by other parties than a state that breaches an international agreement.


University of Texas School of Law: Richard Sander, University of California at Los Angeles, "A Systemic Analysis of Affirmative Action in American Law Schools".

Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.

Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”.

Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines".

NYU Law: Liam Murphy, Concepts of Law.
Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability".

Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia".

Conference Announcement: European Congress for

Conference Announcement: European Congress for Analytic Philosophy

Fifth European Congress for Analytic Philosophy, ECAP 5 Faculdade de Letras de Lisboa, 27-31 August 2005 http://www.centrofilosofia.org/ecap5

Workshop on Philosophy, Economics, and Public Policy

Organised by Luc Bovens (LSE and editor, Economics & Philosophy), Geoffrey Brennan (ANU and editor, Economics & Philosophy), and Alex Voorhoeve (LSE).

Description: The workshop focuses on techniques and ideas from moral and political philosophy and from economic theory that bear on the analysis of issues in public policy. Some of the topics that may be addressed in the workshop are environmental regulation, health policy, the welfare state, voting theory, …

Invited Speakers:
Sven Ove Hansson (Royal Institute of Technology, Stockholm)
Julian Legrand (LSE, London and UK Prime Minister’s Health Policy Advisor)
Jonathan Wolff (UCL, London)

Submission of papers:

Authors are invited to submit papers that they wish to present at the workshop electronically to ecap5@bovens.org. Submissions should be maximum 5000 words.

All papers will be blind reviewed. The deadline for submission is April 15, 2005.

Authors will be informed of the decision about the presentation of their paper by May 15, 2005.

The workshop is supported by a grant by the Alexander von Humboldt Foundation, the Federal Ministry of Education and Research and the Program for the Investment in the Future (ZIP) of the German Government.

Conference Announcement: Self-KnowledgeThe Royal Institute

Conference Announcement: Self-Knowledge

The Royal Institute of Philosophy University of Manchester 5 March 2005

'Self-Knowledge'
A symposium on the nature and the limits of
understanding oneself.

Speakers:

Paul Snowdon (UCL)

Sven Bernecker (Manchester)

David Owens (Sheffield)

Naomi Eilan (Warwick)

For further inquiries please visit:

http://les.man.ac.uk/philosophy/rip/rip2005.html

Legal Theory CalendarMonday, February 28

Legal Theory Calendar

Monday, February 28
UCLA School of Law: Kurt Lash, The Lost History of the Ninth Amendment. Here is a taste:
A comprehensive look at the lost history of the Ninth Amendment is presented in two articles, Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L. Rev. 331 (2004), and Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597 (2005). This short essay briefly summarizes some important aspects of that history. Those interested in the subject are encouraged to read the full articles.

Given that the states had existed for more than a decade under the Articles as thirteen “free and independent states, it is no surprise that the degree to which the proposed Constitution would diminish (or eradicate) individual state autonomy was a major issue in the ratification debates. Despite Federalist assurances to the contrary, Anti-federalists warned of the potential consolidation of the states under a national government with unlimited power. Although a sufficient number of states eventually agreed to ratify the Constitution, a number of them did so with the understanding that the scope of federal power would be strictly limited. Several state conventions included statements of principle along with their notice of ratification declaring their understanding that all non-delegated powers, jurisdictions and rights were reserved to the states.


Northwestern International Law: Larry Helfer, Professor of Law, Vanderbilt University, "Exit Treaties". Here is a taste:

[B]uried at the back of most modern international agreements, and often overlooked by scholars, are provisions that call into question international law’s unequivocal command that states must either obey treaties or cooperate in abrogating or revising them. Such provisions, known as denunciation or withdrawal clauses, permit a state to “exit” from a treaty that the state had previously ratified and that is otherwise valid and in force.

Distilled to their essence, exit clauses create a lawful, public mechanism for a state to terminate its treaty obligations or withdraw from membership in an intergovernmental organization.5 Denunciation and withdrawal are fundamentally unilateral acts. They do not require the consent or approval of other states, and may often be effectuated simply by providing notice to the other parties. Moreover, a state that invokes these clauses to quit a treaty occupies a very different position from a state that breaches its treaty commitments. An exiting state faces different burdens and benefits, different prospects of being sanctioned, different reputational consequences, and different responses by other parties than a state that breaches an international agreement.


University of Texas School of Law: Richard Sander, University of California at Los Angeles, "A Systemic Analysis of Affirmative Action in American Law Schools".

Oxford Moral Philosophy Seminar: Robert Sugden, East Anglia.

Hofstra University School of Law: Myriam Gilles, Cardozo Law School, “Opting Out of Class Action Liability”.

Loyola Marymount University, Loyola Law School: Douglas Berman, Professor of Law, Ohio State University Moritz College of Law, "Booker: The Future of the U.S. Sentencing Guidlines".

NYU Law: Liam Murphy, Concepts of Law.
Vanderbilt Law & Economics: Jennifer Arlen, New York University, "Private Contractual Alternatives to Malpractice Liability".

Vanderbilt Charney Distinguished Lecture Series: William Schabas, National University of Ireland, Galway, "Genocide and International Law: Darfur, Srebenica and Cambodia".

Tuesday, March 1

Oxford Jurisprudence Discussion Group: Stephen Perry, Associative Obligations and the Obligation to Obey the Law. Here is a taste:

One of the strands woven into the complex fabric of Law’s Empire is an argument that there exists, under certain conditions, a general moral obligation to obey the law. Whether or not there can ever be such an obligation is an age-old problem in political philosophy, and Dworkin’s argument is offered, in part, as a contribution to that particular philosophical tradition. But it is more than that, because the argument also constitutes an integral part of Dworkin’s general theory of law. That is why I say it is one strand of a complex fabric; for Dworkin, political and legal philosophy are inextricably connected. For many of the philosophers who have addressed the question of political obligation, as I shall call it, there is no such inevitable connection. Notice, to begin, that no respectable theory of political obligation ever claimed that a person is obligated no matter what to obey the laws of a legal system to which he or she is subject. Every minimally plausible theory sets out certain conditions under which such an obligation is said to arise, and Dworkin’s is no exception. Many such theories have, however, regarded these conditions as ones that do not figure in any essential way in the concept of law itself. They assume that law constitutes a system of norms the existence and content of which can be established by, say, looking to certain kinds of social facts, and then asking whether or not a given legal system meets a set of independently specifiable conditions; if these conditions are met, then a general obligation to obey is said to exist. Arguments based on consent are often (although not necessarily) of that form; they look to an independently specifiable condition that asks whether or not everyone who is subject to a legal system has validly consented to obey its laws, whatever they are. The argument from fair play is also of this form; it looks to an independently specifiable set of conditions that asks, first, whether the content of the norms of the system show it to be a mutually beneficial scheme of cooperation, and, second, whether or not those subject to the system have “accepted” its benefits.2 There are, as Dworkin points out, well-known problems with both arguments if they are regarded as the basis of a general obligation to obey the law, since it is never the case that everyone subject to any given legal system has validly consented to obey it or has accepted, in the appropriate sense, certain benefits it happens to provide (LE at 192-95). My present point, however, is that these arguments treat the philosophical problem of political obligation as for the most part independent of the philosophical problem about the nature of law.

Georgetown University School of Law: Abbe Smith.

Northwestern Empirical Legal Studies: Margaret Brinig, William G. Hammond Distinguished Professor of Law, University of Iowa, "The Effect of Change in Child Custody Standards".

Oxford Centre for Socio-Legal Studies: Richard Whitecross, Legal Culture: Bringing the Theoretical and Empirical Closer Together: Citizenship and Belonging: Law and Identity in a Himalayan State.

Oxford Intellectual Property Research Centre: Dr Christine Greenhalgh & Dr Mark Rogers, Intellectual Property in the New Millennium: The Use of Intellectual Property by the UK Financial Services Sector.

Wednesday, March 2

Notre Dame Law School: Lawrence Solum, University of San Diego, "Virtue Jurisprudence: An Aretaic Theory of Law." Scroll down to last Wednesday for an abstract.

University College, London, Colloquium in Legal and Social Philosophy: Professor Seana Shiffrin (UCLA), 'What's wrong with compelled association?'. Here is a taste:

Roberts v. United States Jaycees held that it was constitutionally permissible for Minnesota to require the Jaycees, as a public accommodation, to desegregate and to admit women. Sixteen years later, Boy Scouts of America v. Dale held that it was constitutionally impermissible for New Jersey to require the Boy Scouts, as a public accommodation, to remain partly desegregated and to retain an openly gay Scoutmaster. It is no surprise that Dale caused gnashing of teeth by those who applauded Roberts v. Jaycees: the Court’s commitment to integration seemed all too limited. Women counted; gays and lesbians did not. This analysis may be a partly accurate diagnosis of Dale’s resolution, but it does not fully capture what is troubling about Dale. From a First Amendment perspective, both Jaycees and Dale should have occasioned even greater dental damage.

Those who support Roberts v. Jaycees, especially liberals, should have been disturbed by Dale, not entirely because of its outcome, but because the reasoning of Dale and the debate between the justices was foreshadowed by Justice Brennan’s majority opinion in Jaycees. The opinions in Dale, and in particular the dissenting opinions of the liberal justices, follow the lead of Justice Brennan. In so doing, they reflect and forward a message-centered view of freedom of association that, while familiar, is importantly and unpalatably incomplete.

In this Essay, I will argue that Jaycees was correctly decided but that Justice Brennan’s majority opinion reflects and has reinforced a messagecentered approach to freedom of association that denigrates its value and implicitly distorts and underplays its intimate connection to freedom of speech. A parallel mistake occurs in a common articulation of the objection to certain forms of compelled speech. Drawing upon a core, but underemphasized, aspect of liberalism, I will re-fashion the case against compelled speech in a way that concomitantly provides a stronger foundation for freedom of association. Specifically, the fundamental wrong of compelled speech in cases such as West Virginia State Board of Education v. Barnette, which found the compulsory recitation of the Pledge of Allegiance unconstitutional, does not depend on any external effect, in particular on outsiders possibly misunderstanding a person’s compelled speech as his own. It has more to do with the illicit influence compelled speech may have on the character and autonomous thinking process of the compelled speaker, and with illicit and disrespectful governmental efforts, however fruitless, to exert such influence.


Northwestern University, Constitutional Theory Colloquium: Charles Lawrence, Georgetown, "Forbidden Conversations: On Race, Privacy and Community". Here is a taste:

This article considers the subject of my silence, the relationship between the constitutional injury of racial segregation and the privatization of education. When I speak of privatization here I do not only mean the flight to private schools, or the corporatization of school systems, or the politics of school vouchers,4 although these are all symptoms of the larger problem I wish to explore. The larger problem is something I will call the privatization of care and concern for and conversation about the education of our children. I believe that increasingly public policy makers and individual parents alike think and speak about children’s right to equal educational opportunity as if that project were primarily about giving parents the chance or “liberty” to be consumers in the education market on behalf of their own children. The decisions about how to educate our children (meaning the children in our nuclear family)—where we will school them, who their classmates will be, what curriculum they will be taught—are thought of as private, protected by our constitutionally protected liberty to raise our children as we see fit. When my colleague asks about a good school for his son he is not engaging me in a conversation about what school is best for his children and mine, much less for the poor black children who live in D.C. When parents search for a good school for their children, they do not see the project as collective, as about how we will engage the political process as a community to determine what is best for all our children and see to it that they get it.

Fordham University School of Law: Grainne De Burca; European University Institute, Visiting Professor, New York University School of Law, "The European Constitution: In Search of Europe's International Identity?".

Thursday, March 3

University of Texas School of Law: Akhil Amar, America's Constitution: A Guided Tour. Here is a taste:
This book has tried to offer a comprehensive account of America’s Constitution, introducing the reader both to the legal text (and its consequences) and to the political deeds that gave rise to that text. Surprisingly enough, virtually nothing else in print aims to do this. There is of course a vast outpouring of superb work on the Constitution. But within the legal literature, most books and articles focus on some specific aspect of constitutional law—executive power, judicial review, free speech, or what have you—and make no effort to encompass the constitutional system as a whole. Many law-trained authors concentrate on Supreme Court decisions, thereby privileging the United States Reports over the United States Constitution. Other law books are dense treatises aimed only at legal professionals. While political scientists routinely analyze Congress, the presidency, and the judiciary, they, too, rarely ponder the Constitution as a whole. True, historians have offered rich accounts of the Founding era and its colorful personalities. Yet these chroniclers have devoted less attention to the Constitution as a legal text, and what work they have done on the document often focuses only on the original version framed at Philadelphia. Rarely do they carry the story forward to include all the amendments over the next two centuries.* Finally, there are a few general classroom textbooks about the Constitution, most of which are distillations of conventional wisdom pitched at an average ninth grader. In the preceding pages I have aimed higher, targeting undergraduates, law students, graduate students, history buffs, civil libertarians, opinion leaders, politicians, judges, lawyers, teachers, professors, and general-interest readers.

Yale Law, Economics, & Organization Workshop: Mark Roe, Harvard/Law, Delaware's Politics. Here is a taste:

Delaware makes the corporate law governing most large American corporations. Since Washington can take any, or all, of that lawmaking away, a deep conception of American corporate law should show how, when, and where Washington leaves lawmaking authority in state hands, and how it affects what the states do.

The interest groups and ideas in play in Delaware are narrow, those in Congress wide. Three key public choice results emanate from that observation. First, interest groups powerful enough to dominate Delaware lawmaking forgo a winner-take-all strategy because state-level losers can call for federal action and either ally there with new interest groups or appeal to ideas not in play in Delaware. Second, the major statelevel players usually want to confine federal authority in making corporate law, because a local deal cuts in fewer players; a federal deal splits the pie with outsiders. Third, we can delineate the space in which the states have room to maneuver and where they risk federal action.

It’s when Delaware acts first—as it often can because the federal agenda is large and Delaware’s small—that it gains most of its discretion vis-à-vis the federal authorities. When it moves first, especially when its two main players¾managers and investors¾agree on what to do, those two players largely determine American corporate law’s initial content. Federal authorities might then change the state-made result, and players and ideologies absent in Delaware but big in Washington affect the federal result. Those new players and ideas give the original Delaware players reason to resist federal action. Doctrines that limit federal effort—corporate law’s principle that the incorporating state should govern its corporations’ internal affairs, for example—are public-regarding justifications for deferring to interests that prevail on the state level. But when Delaware cannot act first—either because media saliency puts the matter on the federal agenda or because its primary players disagree—then Delaware loses its dominance.

I then analogize the relationship between Delaware and Congress to that between federal agencies and Congress. Federal agencies have discretion and first-mover advantages, but their independence even when wide is confined, ending when they provoke Congress. So it is with Delaware.

The interstate race is overrated as the chief structural determinant of American corporate law. Without taking account of how Congress and Delaware interact, we cannot see core characteristics of American corporate law. And to understand that federal-state relationship, we must grapple with the how the interest groups and ideas in play in Delaware differ from those in Congress.


Stanford Law & Economics: Alan Sykes (University of Chicago Law School), "Public vs. Private Enforcement of International Economic Law". Here is a taste:

This paper develops a positive theory of the rules regarding standing and remedy in international trade and investment agreements. In the investment setting, the paper argues that a central objective of investment treaties is to reduce the risks confronting private investors and thereby to lower the cost of capital for capital importing nations. This objective requires a credible government-to-firm commitment (or signal) that the capital importer will not engage in expropriation or related practices. A private right of action for money damages is the best way to make such a commitment. In the trade setting, by contrast, importing nations have no direct interest in reducing the risks confronting exporters of goods and services, and will desire to make market access promises more secure only if such behavior facilitates reciprocal benefits for their own exporters. Consequently, commitments in trade agreements are best viewed as government-to-government rather than government-to firm. The parties to trade agreements can enhance their mutual political welfare by declining to enforce commitments that benefit politically inefficacious exporters, and can most cheaply do so by reserving to themselves the standing to initiate dispute proceedings – a right to act as a “political filter.” The paper also suggests why governments may prefer to utilize trade sanctions rather than money damages as the penalty for breach of a trade agreement.

Boston University School of Law: Lewis Kornhauser (NYU), "Contingency and Control: A Theory of Contracts".

Florida State University School of Law: Nancy Staudt, Washington University-St. Louis.

George Mason University School of Law: Iliana Ilieva, GMU School of Law Levy Fellow, Law and Economics in Mutualfundland (with D. Bruce Johnsen).

George Washington University IP Series: David Nimmer, "Codifying Copyright Comprehensibly".

Georgetown Workshop on Transnational Legal Issues: Laurel Terry, Dickinson Law School
"WTO, GATS, and the Regulation of Transnational Law Practice".

Yale Legal Theory Workshop: Walter Benn Michaels, University of Illinois (English).

Friday, March 4

UCLA School of Law: Albert Yoon, Northwestern University Law School, "Offer-of-Judgment Rules and Civil Litigation: An Empirical Study of Insurance Litigation in the East"

Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law: Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term : Christopher Tung (Hong Kong), Climate Change Action and Sustainable Development in China.

Georgetown International Legal Theory Colloquium: Rosa Ehrenreich Brooks, U. of Virginia School of Law, "Failed States, or The State as Failure?".

Legal Theory Lexicon: TextualismIntroduction One

Legal Theory Lexicon: Textualism

Introduction One of the most important topics in legal theory is “legal interpretation,” the theory of the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. As always, the Legal Theory Lexicon is designed for law students—especially first year law students—with an interest in legal theory.
Three Levels of Interpretive Theory I find it helpful to separate out three different “levels” at which theories of legal interpretation can operate:
• Level One: Meta Theories of Interpretation—One kind of theory examines questions like, “What does ‘interpretation’ mean?” and “How is ‘interpretation’ possible?”
  
• Level Two: Normative Theories of Interpretation—A second kind of theory addresses the normative question, “What should legal interpretations aim at?” Among the answers to this question are: (a) the morally best reading of the legal text; (b) the intentions of the authors of the legal text, and (c) the plain meaning of the legal text.
  
• Level Three: Methodological Theories of Interpretation—A third kind of theory aims to provide practical advice to legal actors (judges, lawyers, administrative officials, and citizens) about the techniques they can use to interpret various types of legal texts.
Textualism, the subject of this post, can operate at any one of these three levels. That is, textualism could be the view that what legal texts really mean is their plain meaning. Or textualism could be the view that legal interpreters ought to interpret legal texts to have their plain meaning, even if that is not their true or deep meaning according to the best meta theory of interpretation. Or textualism could simply be a practical technique—a method that judges should employ. In this post, the primary focus will be on level two—textualism as a normative theory—with some discussion of level three. Level one, metatheory, gets us into a thorny set of issues that I hope to take up in a subsequent entry in the Legal Theory Lexicon series.
The Plain Meaning of the Text Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who knew that they were reading a statute (or court decision, etc.).
But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.
An Excursion into Speakers Meaning and Sentence Meaning I may be making a mistake, but I think that textualism is illuminated by an excursion into what is sometimes called speech act theory, and in particular, by looking at the concepts of “speaker’s meaning” and “sentence meaning.” So here goes:
Speaker’s Meaning and Sentence Meaning This idea of plain meaning assumes a distinction that can be formulated in terms of the difference between speaker’s meaning and sentence meaning. The speaker’s meaning of a given utterance (or author’s meaning of a given text) is the meaning that the speaker intended the audience to glean for the utterance (or text). This involves a reflexive set of expectations. What? When I write a text, I understand that the reader know certain things about my having authored the text. When I try to communicate, I take these expectations into account in deciding how to use language to communicate a certain meaning. For example, if I know that my readers know that I know that they know a particular convention, then I can use that convention to communicate to them. (By the way, there are no typos in the prior sentence, all those “knows” are in there for a reason.)
So when I blog, I know that the readers of blogs assign a particular meaning to the word “post,” and I also know that my readers know that I know that they know this blogospheric convention. So I can use the term “post” to refer to blog entries with confidence that my readers will understand what I mean. On the other hand, if I were writing about blogging for an audience that had never encountered a blog, I would probably need to define the term “post,” before I used it, and if I used the term “post” without defining it, then my audience would likely believe I was referring to mail and not blog entries.
In other words, when someone speaks or writes for a particular audience on a particular occasion, the speaker or author can take into account what she knows about the audience, what the audience knows about her, but only insofar as the speaker knows that the audience knows what the speaker knows about the audience.
Speaker’s meaning can be distinguished from sentence meaning. Sentence meaning is the meaning that an utterance has when the audience is unaware of the speaker’s intentions. When we identify sentence meaning, it is as if we were imaging a sot of generic speaker, who uttered the sentence in a generic context. Or putting this a bit differently, sentence meaning is the meaning we would assign sentences when we know that the speaker can’t assume that we are aware of special conventions about meaning.
Legal Texts, Sentence Meaning & Speaker’s Meaning Legal texts are sometimes intended for a timeless, generic readership. The authors of legislation, for example, know that many different actors (judges, lawyers, administrative officials, and ordinary citizens) will read the statute for an extended period of time in a variety of different conditions. Many of these readers will not be able to afford access to analysis of the legislative history of the statute; they will simply read the statute itself. Of course, they will know that the text they are reading is a statute, and they will therefore have a fair amount of knowledge about the likely intended meaning of various terms and phrases. Moreover, the legislature knows that the readers of statutes will have this knowledge. So it might make sense to assume that the speaker’s meaning that should be assigned to a legal text is a special version of the sentence meaning of the text, e.g. legal sentence meaning.
The Case for Textualism If we view textualism as a normative theory of interpretation, we need to ask to ask why interpreters of legal texts should aim for interpretations that yield that “plain meaning of the text.” The usual answer to this question is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. One of the important rule of law values is publicity: the law should be accessible to ordinary citizens. Ordinary citizens are likely to interpret statutes to have their plain meaning, because ordinary folks rarely have the training to understand legislative history and even if they did have such training, it would simply be too costly to analyze the legislative history of statutes to determine their meaning.
Lawyers who counsel citizens and organizations do have the training to analyze legislative history, but can more easily and cheaply discern the plain meaning of a statute than some special meaning that only becomes clear once the legislative history is consulted. Moreover, analysis of legislative history can be quite complex, because some sources of legislative history (e.g. the statements of floor managers) are much more reliable than others (e.g. the statements of opponents of a bill or of the author of a bill). Because of the complexity of statutory interpretation, lawyers are likely to disagree about the meaning of legislative history and to err when predicting how a court will interpret legislative history.
The same difficulties that afflict lawyers are plague judges. Moreover, most legal research done for federal judges is done by very young lawyers serving as law clerks. This group usually lacks experience in researching legislative history, and their performance is likely to be highly variable. Moreover, because legislative history will frequently contain many conflicting, ambiguous, and vague statements, it is possible that legislative history is easily subject to manipulation, giving judges the opportunity to support their own policy preferences with evidence of the “intentions of the legislature.”
Textualism as a Practical Methodology Even if textualism does not provide the best ideal theory of legal interpretation, it might be the case that textualism does provide the best practical method of interpretation given the capacities of real world judges and officials. Suppose that we want to interpret statutes to achieve the purposes of the legislature. At first blush, it might seem that the best way to do this would be to have courts and officials employ an intentionalist methodology, combing the legislative record for evidence of legislative intent. But as a practical matter, it may turn out that judges aren’t very good at doing this. So it might be the case that real-world judges are more likely to implement legislative purposes by employing a fairly simple plain-meaning approach as methodology for statutory interpretation. And to the extent that legislators know that judges will employ this approach, legislators could draft with the expectation that judges will use a plain-meaning methodology, which presumably would lead to even closer fit between the plain meaning and the achievement of legislative purpose.
Conclusion “Textualism” is just one of many approaches to the theory of legal interpretation, but it is an especially good place to begin thinking about issues of interpretation in law. One of the very best ways to become a sophisticated thinker about these issues is to take a really good course in statutory interpretation. Not so long ago, statutory interpretation was considered a dead field, but today there is a tremendous flowering of interesting and exciting scholarship about the interpretation of statutes. I hope that this post has whetted your appetite!

Legal Theory Bookworm The Legal

Legal Theory Bookworm The Legal Theory Bookworm recommends Agency And Answerability: Selected Essays by Gary Watson. Here is a description:

Since the 1970s Gary Watson has published a series of brilliant and highly influential essays on human action, examining such questions as: in what ways are we free and not free, rational and irrational, responsible or not for what we do? Moral philosophers and philosophers of action will welcome this collection, representing one of the most important bodies of work in the field.

Gary Watson's work is brilliant! If you are interested in agency and are not yet familiar with Watson, buy this book.

Download of the Week The

Download of the Week The Download of the Week is Legal Positivism Since H.L.A. Hart by Jules Coleman, . Here is a taste:

Dworkin is inclined to trivialize what it is about law that is of interest to positivists. He often associates positivism with a social science project that we are ill suited for. The only philosophical projects he allows that we might be interested are not interesting: either an account of the meaning of ‘law,’ or the individuation of norms. Now frankly I am interested in the first of these projects, but not for the reasons Dworkin thinks, and every positivist is interested in the latter project but not as a vapid or empty exercise. Rather, it is an interesting feature of our social lives that we participate at any one time in a wide range of normative social practices. They are similar to one another in certain ways, and different from one another in other ways. Our participation is different, our reasons for doing so differ; the claims these practices make on us our different. We want to explore the distinguishing features of the practices because we want to know how they differ from one another and how they are similar to one another, and we want to know how and why the claims they make on us differ. In other words we want to understand important aspects of ourselves in the social world. At the end of the day, jurisprudence is important to the human project of self-understanding. I don’t think that is any less worthy or suspect that understanding the law from the point of view of central concerns in political philosophy. I doubt that one has to be a positivist either to appreciate the importance of jurisprudence to understanding ourselves from the first person perspective in the social world.

Highly recommended, of course!

Saturday CalendarUC Riverside Philosophy: Actions

Saturday Calendar

UC Riverside Philosophy: Actions and Values: A Conference in Honor of the Publication of Gary Watson's book, Agency and Answerability.

Friday CalendarUniversity of San Diego

Friday Calendar

University of San Diego School of Law: Orin Kerr, George Washington University.
UCLA School of Law: Mark Lemley, Stanford University School of Law, "Property, Intellectual Property, and Free Riding".
University of Texas, School of Law: Ronald J. Mann, UT Law, & Seth Belzley, UT Law student, The Promise of Internet Intermediary Liability.
University of Texas, School of Law: Thomas Kohler, Visiting Professor at UT from Boston College, "The Notion of Solidarity and the Secret History of American Labor Law".
Oxford Centre for Competition Law & Policy: Sir John Vickers (Chairman, OFT), The abuse of market power.
Oxford Globalisation & Sustainable Development Law Group in conjunction with Centre for International Sustainable Development Law, Globalisation & Sustainable Development Law Lectures, 2005 Hilary Term: Mr. Kent Nnadozie (Nigeria), An International Regime on Access to Biodiversity and Sharing of its Benefits.

Bridgeman on Corrective Justice Accounts

Bridgeman on Corrective Justice Accounts of Contract Curtis Bridgeman (Florida State University - College of Law) has posted Strict Liability and the Fault Standard in Corrective Justice Accounts of Contract on SSRN. Here is the abstract:

Corrective-justice theorists have enjoyed a certain amount of success explaining tort law. Some of these theorists have begun to apply corrective-justice theory to the law of contract, but they have not yet explained how corrective justice, which normally argues that private law is concerned with the correction of wrongdoing done to victims by injurers, can explain a body of law like contract that seems indifferent to wrongdoing. In this paper, I argue that void is a problem for corrective-justice theories of contract, since although contract compensates for breach it does not do so as a way of responding to breach as a form of moral wrongdoing. Corrective justice can still explain contract law, however, because there is a way of understanding corrective justice as the view that private law compensates for losses that are wrongful even though they may or may not be the result of wrongdoing. Moreover, I argue that by understanding corrective justice in this way we achieve a general theory of contract that is more acceptable from the point of view of political liberalism than the current non-corrective accounts of contract.

Highly recommended!