Legal Theory Blog

Slobogin on Stuntz's "The Collapse of American Criminal Justice"

Christopher Slobogin (Vanderbilt Law School) has posted American Criminal Justice Exposed (Criminal Justice Ethics, 2012) on SSRN. Here is the abstract:

This is a review of William Stuntz' book, The Collapse of American Criminal Justice (Harvard University Press, 2011). The book represents the culmination of a stellar career. The review is a detailed description and analysis of the book. It concludes that the book "is a tour de force that only someone who has easy familiarity with a wide array of disciplines could pull off."

Rappaport on Originalism 101

Michael Rappaport has an incisive post entitled "Originalism 101" that reacts to the Legal Theory Lexicon entry on Originaliism.  Rappaport is one of the best informed and most sophisticated originalists, and his comments are accurate, illuminating, and serve to provide important context.  I I might have a quibble or two, but for the most part I agree with his clarifications.  The one issue where there might be a significant disagreement (or perhaps a need for further clarification or specification) concerns the role of construction--on which I may have some further comments.  In any event, his post is highly recommended.

Halpin on Language, Truth, & Law

Andrew Halpin (National University of Singapore (NUS) - Faculty of Law) has posted Language, Truth and Law (“Language, Truth and Law” Forthcoming in Michael Freeman and Fiona Smith (eds), Current Legal Issues, vol 15: Law and Language (Oxford: Oxford University Press, 2012)) on SSRN. Here is the abstract:

This essay seeks to deal with fundamentals regarding the interrelationships between language, truth and law, but by taking a path that progresses through observations that can be stated uncontroversially, in contrast to an elaborate view of how an understanding of language, truth and law should be combined to promote a comprehensive account of human life and social existence. Different configurations of the three elements of the title produce different priorities. One emphasizes a technical understanding of language in deriving a true understanding of law. Another emphasizes the particular features of law and its practice in shaping the acceptable meaning that can be conveyed by language in the legal context. It is also possible to find a prioritizing of truth governing acceptable understandings of law.

Although all of the configurations mentioned are considered in the essay, the strategy for working through them is oblique, in examining different possible relationships between language, truth and law as they emerge in a number of scenarios involving the putative operation of legal texts. On the understanding that the set of scenarios chosen is sufficiently representative of the different ways in which legal texts operate, the investigation reaches a number of general conclusions about language, truth and law.

The essay considers the nature of legal propositions, the basic characteristic of legal language, different ways in which the language of the law is regarded as becoming unclear and the corresponding views on how that uncertainty is resolved. Models are introduced to exhibit the elementary scenarios of acknowledging and dealing with uncertainty in legal texts, as a basis for discussing the interrelationships between language, truth and law.

The conclusions reached from this discussion are that the meaning of legal language cannot be assisted by a deeper technical understanding of language; that truth is inappropriately invoked as the basis for establishing the meaning of legal texts; that clear cases do not provide illumination for hard cases, but the reverse (thus casting doubt on Hart’s central or standard case analysis of legal language); and, in general, that legal language follows the practice of law.

Curtis on Citizens United & Davis v. FEC

Michael Kent Curtis (Wake Forest University - School of Law) has posted Citizens United and Davis v. FEC: Lochner on Steroids and Democracy on Life Support on SSRN. Here is the abstract:

2012 is a year of unprecedented amounts of political advertising, much of it paid for by billionaires and millionaires or by corporations, often with the identity of the funders hidden. These mega-funders act through “independent” groups, groups supposedly independent of the candidates. This is a good year to reflect on the health of our political system. Does it work well as a device to promote informed democratic decision-making and speech from multiple perspectives? The problems are deep and systemic. They go farther and deeper than recent Supreme Court decisions that increase the previously very substantial influence of huge corporations and the very wealthy on the American political system.

Still, recent decisions can lead us to think about the larger environment of our free speech system and about democratic system. Citizens United conferred a free speech right on corporate officers to spend unlimited amounts of corporate treasury funds for “independent” broadcast ads that support or oppose candidates for political office. Davis v. FEC protected self-funded millionaires and billionaires from the millionaire amendment to the McCain Feingold Act. That amendment allowed somewhat higher contribution limits (in a total not to exceed the millionaire’s or billionaire’s spending) for candidates facing and outspent by millionaires or billionaires. The Court found this limited effort to protect the opportunity of the underfunded candidate to respond impermissibly chilled the speech of millionaires and billionaires. Arizona Free Enterprise struck down an important system for public finance of state elections, again on the idea that a limited amount of publicly facilitated matching equals chilling.

These decisions are in considerable tension with the constitutional text and with the historical context and purposes of free speech guarantees. In the case of the 14th Amendment, the transformation of the text, from one protecting natural persons born or naturalized to one protecting corporations, has its origin in Lochner era jurisprudence.

The Davis and Citizens United decisions can best be understood in light of their impact on the already troubled larger environment necessary to sustain robust free speech and meaningful democracy.

Citizens United threatens to undermine further the fiduciary duty of elected officials to the people. It is inconsistent with historic understanding of the then radical idea that helped to create the system. By that approach, free speech was a right for people, was anti-hierarchical, and was designed to produce adequate information from multiple perspectives. It is in tension with the recognition that government has a positive role in furthering free speech and democracy. Government action may support free speech. It is not always a threat. Nor is unrestrained private power merely a benefit for robust free speech.

The Citizens United, Arizona Free Enterprise Freedom Club’s PAC, and Davis v. FEC decisions can best be understood in light of the ecology of freedom of expression and a host of threats it faces. As de Tocqueville, Daniel Webster, and James Madison were aware, extreme concentration of wealth in few hands tends to undermine democracy as well as effective speech from multiple perspectives. In addition, undermining the anti-trust laws to permit extensive corporate consolidation threatens democracy. That candidates need huge advertising budgets for television and often must rely on those with great wealth for contributions undermines their fiduciary duty to “the people.” That they are funded by “independent” groups raises similar problems. Both facilitate an insidious form corruption of the political process. Concentration of media power in a few corporate hands exacerbates the problem. The demise of the Fairness Doctrine further facilitates one sided political communication. It is no surprise that candidates supported by corporate groups act to diminish sources of funding for other perspectives, by undermining unions and public employee unions and restricting the rights of victims of torts and so income of trial lawyers.

The decisions of the Lochner era struck down progressive legislation, but left the political process relatively open. Decisions which undermine the democratic nature of the political process are worse. They strangle reform in the crib. The Court’s rejection of any consideration of equality of access to speech in the political process and its refusal to see any threat to the fiduciary role of public officials beyond outright bribery block almost all meaningful reform.

A revived and more pervasive fairness doctrine for television and cable (where most of the political money is spent) would be one reform to limit monopolization of speech by wealthy interests, though implementation would raise its own problems. Another would be a required amount of free time for candidates on television and radio.

Highly recommended.

Corbett on Creative Commons Licences

Susan Corbett (Victoria University of Wellington) has posted Creative Commons Licences: A Symptom or a Cause? on SSRN. Here is the abstract:

Creative Commons licences were developed in 2002 as a response to what was viewed by the United States based Creative Commons movement as the increasingly restrictive influence of copyright law upon creative culture. The movement sought to develop a constructive alternative to copyright that would promote free culture by following the example of the open source initiative and the Free Software Foundation. Although the original licences are freely available on the Creative Commons website for use by authors and creators from any jurisdiction, since 2004 the Creative Commons project has encouraged countries to develop their own versions of the licences, which better acknowledge certain national differences in copyright laws. New Zealand has now established its own versions of the licences under the auspices of the Council for the Humanities.

Lindseth on Rosenfeld on the Constitutional Subject & Globalism

Peter L. Lindseth (University of Connecticut School of Law) has posted Constitutionalism Beyond the State?: The Administrative Character of European Governance Revisited (Cardozo Law Review, Vol. 33, 2012) on SSRN. Here is the abstract:

This article is my contribution to a symposium at Cardozo Law School in October 2010 on Michel Rosenfeld’s recent book, The Identity of the Constitutional Subject (2010). I focus in particular on the question posed in Rosenfeld’s final chapter, 'Can the constitutional subject go global?' Like many other scholars, Rosenfeld cautiously looks to the experience of the European Union (EU) as a possible model for such denationalized constitutionalism. I believe this approach requires even more circumspection than Rosenfeld rightly brings to it. Understood historically, European integration is best seen as a new, denationalized stage in the historical process of diffusion and fragmentation of normative power into the administrative sphere, whether within or beyond the state. Even as significant regulatory power has migrated to Europe’s denationalized system of governance, the capacity for ultimate legitimation has remained distributed among the 'constituted' bodies of government in the Member States; no similar capacity has yet migrated to the EU level, despite the best efforts of Europe’s supranational institution-builders over time. The evolution of the European public law over the last six decades can thus best be understood as an effort to overcome a core disconnect - between the exercise of otherwise autonomous supranational regulatory 'power,' on the one hand, and the persistence of the nation-state as the primary source of democratic and constitutional 'legitimacy,' on the other. This separation of power and legitimacy has been the identifying characteristic of administrative governance as it evolved over the course of the twentieth century. Although often overlooked in the literature on European integration, European public law has depended on the legitimating structures and normative principles of administrative governance in its effort to reconcile Europe and the nation-state for more than over a half-century. In this sense, the EU is best understood as 'administrative, not constitutional' rather than as a possible model of 'constitutionalism beyond the state.'

Sharma & Glennon on Supreme Court Term Limits

Hemant Sharma and Colin Glennon (University of Tennessee and Fort Lewis College) has posted A Case for Term Limits? Temporal Shifts in Ideological Congruity Between Appointing Presidents and Supreme Court Justices on SSRN. Here is the abstract:

The desirability of complete judicial independence, as preserved by the vehicle of life tenure, has been debated in recent works from Calabresi and Lindgren (2006), Carrington (2006), and Nagel (2006). At issue is whether democratic theory is compatible with policy-making by the unelected justices who serve on the Supreme Court of the United States, particularly as their service becomes further removed from the moment in time when elected officials played a role in their appointment. In keeping with these concerns, we examine the year-to-year relationship between appointing presidents and Supreme Court justices. Relying on ideal points that place all actors in the same scale, we generate regression models that show a justice will drift from the ideology of an appointing president with each additional term served, even after controlling for ideological shifts in an overall political climate. Further, our analysis reveals that the beginning of the 11th term represents the point at which ideological drift becomes highly significant. Consequently, the connection between justices and democratically-elected officials begins to wane after this point in a justice’s tenure - a finding that is likely to be germane for proponents of term limits for Supreme Court justices.

Norton on Equal Protection & Government Hate Speech

Helen L. Norton (University of Colorado School of Law) has posted The Equal Protection Implications of Government's Hateful Speech (54 William and Mary Law Review (forthcoming 2012)) on SSRN. Here is the abstract:

Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the equal protection clause? Government speech that communicates hostility or animus on the on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important behavior, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms potentially posed by such government expression. The recent emergence of the Court’s government speech doctrine — which to date has emphasized the value of government expression without yet fully addressing its potential costs — offers an important new opportunity to consider the situations in which government speech might offend equal protection values.

This Article offers a framework for assessing the equal protection implications of government speech that expresses hatred on the basis of class status. To this end, it first identifies the ways in which such speech might inflict a range of behavioral and expressive harms. The Article then describes lower courts’ general failure to address these potential harms when considering equal protection challenges to such government expression, and contrasts courts’ more expansive understanding of the constitutionally salient harms potentially posed by government’s religious speech in the establishment clause context.

Drawing from the establishment clause experience, the Article then proposes two alternatives for determining when government’s hateful speech runs afoul of equal protection values. First, under a behavioral harm approach, we might understand the equal protection clause to prohibit hateful government expression when it would facilitate private parties’ discrimination or cause its targets to alter their behavior — e.g., by discouraging class members from pursuing a government job or petitioning the legislature because they reasonably conclude that such efforts would be pointless or unwise. Second, under an expressive meaning analysis, we might understand the equal protection clause to prohibit government speech that communicates that class members are outsiders or second-class citizens. After addressing possible objections, the Article concludes that both approaches more accurately recognize those situations in which government speech may inflict harms repugnant to equal protection values than does the status quo, which largely ignores or dismisses those harms.

Jurs on Questions from the Bench & Independent Experts in State Courts

Andrew W. Jurs (Drake University Law School) has posted Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges (University of Pittsburgh Law Review, Forthcoming) on SSRN. Here is the abstract:

While the Daubert case and its progeny provided detailed guidance to judges on the substantive standard for expert gatekeeping, the court spent little time explaining the procedures to use to achieve that gatekeeping review. Justice Breyer’s concurrence in Joiner offered some suggestions on what procedures to use. Since Daubert in 1993, only a few studies have explored the methods judges actually use to perform their gatekeeping task. While they consistently find that judges see their role as more active since Daubert, they are less than complete on procedures of advanced factfinding. They also rely on surveys over a decade old.

This Study offers new data to expand upon and update prior research in the area. Relying on survey responses of state court judges in the Midwestern United States, this Study explores how judges use advanced factfinding tools of the Rules of Evidence in their courtrooms. Some results are consistent with prior studies, particularly the responses on frequency of use of judicial questioning from the bench and appointment of independent experts. Yet by exploring the judicial responses across a variety of characteristics, some new and interesting results arise. Finally, the study provides the only post-Daubert data on the reasons why judges are reluctant to appoint independent experts under Rule 706. Those data contrast with prior studies in the area.

By measuring the actual practices of state court judges, this Study explores the methods Justice Breyer suggested judges use in their Daubert gatekeeping, what tools are used and not used by the judiciary, and whether the aspirational goals of the Rules of Evidence match reality in courtrooms today.

Leib, Ponet, & Serota on a Fiduciary Theory of Judging

Ethan J. Leib (Fordham Law School), David L. Ponet, & Michael Serota have posted A Fiduciary Theory of Judging (California Law Review, Vol. 101, forthcoming 2013) on SSRN. Here is the abstract:

For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. How do we reconcile the call of judicial independence — a function of a judge’s obligation to uphold the rule of law — with that of judicial responsiveness — the obligation that, as a branch of government in a democratic polity, judges must ensure that the law not derogate too far from the will of the people? This paper reveals how the law governing fiduciary relationships sheds new light on this age-old quandary, and therefore, on the very nature of the judicial office itself. In so doing, the paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insight into what it means to be a judge in a democracy, while providing practical guidance in resolving a range of controversial and hotly contested legal issues surrounding judicial performance, such as judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in constitutional interpretation.

Rich and deeply interesting, this very ambitious (and surely controversial) essay is highly recommended. Download it while its hot!