Legal Theory Blog

Dsouza on Consent & Criminal Law

Mark Dsouza (University of Cambridge Faculty of Law) has posted The Power to Consent and the Criminal Law on SSRN. Here is the abstract:

I examine what it is to have the ability to validly consent, and conclude that it is a Hohfeldian power. On that basis, I argue that the necessary conditions for the grant of consent must include all the necessary conditions for the exercise of a power. Using this idea, I attempt to isolate context-independent minimum conditions necessary for the grant of consent. I argue that the grant of consent requires an exercise of volition - the making of a choice - and that there exists no general requirement either that this choice be to invite a boundary crossing rather than merely to permit it, or that the choice invariably be accompanied by a performative token. Furthermore, I argue that the power to consent cannot be exercised so as to have retrospective effect. At most, the expectation of ratification may give rise to an entitlement to a supervening defence.

Murphy on SEC v.Cenery

Richard W. Murphy (Texas Tech University School of Law) has posted Chenery Unmasked: Reasonable Limits on the Duty to Give Reasons (University of Cincinnati Law Review, Vol. 80, No. 3, 2012) on SSRN. Here is the abstract:

Eighty years ago in SEC v. Chenery, the Supreme Court declared, “an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its actions can be sustained.” Translation: Courts and agencies must not deploy post hoc rationales during judicial review to save discretionary administrative actions. Over time, this contemporaneous-rationale rule has seeped deep into the marrow of administrative law.

But this Chenery rule is wrong — or at least not quite right. Chenery’s basic, procrustean mistake was to state a categorical rule even though reliance on post hoc rationales is sometimes sensible. Courts have reasonably responded to this overreach by cheating on Chenery. The law in this area is therefore more confused than it should be, which impedes clear thinking about how post hoc rationales could be integrated into administrative and judicial procedures to improve them both. Chenery's bar is, at bottom, a judicially-crafted, common-law style rule designed to encourage agency responsibility and judicial efficiency. It is not constitutionally compelled. Courts therefore can change it, and they should do so, giving up Chenery's misleading clarity for a pragmatic, rule-of-reason approach.

Or, as Judge Friendly suggested over forty years ago, courts should recognize that applying Chenery is “perhaps more art than science.”

Balkin on the First Amendment as Information Policy

Jack M. Balkin (Yale University - Law School) has posted The First Amendment is an Information Policy (Hofstra Law Review, Vol. 41, 2013) on SSRN. Here is the abstract:

This essay, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.

Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.

Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.

Highly recommended.

Barnett on Libertarianism

Randy E. Barnett (Georgetown University Law Center) has posted Afterword: The Libertarian Middle Way (Chapman Law Review, Vol. 16, 2013) on SSRN. Here is the abstract:

Libertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on "Libertarianism and the Law" in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, both of these comprehensive approaches are recipes for societal conflict. And the legal institutions that are necessary to implement each vision must be highly intrusive and coercive. In contrast, libertarianism is far more modest: it stipulates only that individuals may do what they please with what is theirs, requiring a legal system merely to define the proper jurisdiction of each person over their rightfully acquired property. I explain how the basic insight of libertarianism is rooted in the spirit of toleration that was the classical liberal solution to the socially destructive religious wars. Like Westphalian political "sovereigns" who are to leave each other in peace and not to interfere with each other's domestic affairs, classical liberalism posited the sovereignty of individuals to pursue the good life peacefully within their own jurisdictions, free from outside interference, provided they do not infringe upon the like jurisdictions of other sovereign individuals. I conclude by explaining how libertarianism contributes to the private law that defines the contours of these individual jurisdictions, and the public law that is supposed to confine government to its proper function of protecting the rights of persons better than they can protect themselves. Although many would prefer their own preferred visions of social justice or legal moralism (or both) to be imposed on everyone else, libertarianism represents an appealing "second best" or "middle way" alternative to having someone else's "wrong" vision of social justice or of morality imposed upon them.

Dorf on "Living Originalism" by Balkin & "The Living Constitution" by Strauss

Michael C. Dorf (Cornell Law School) has posted The Undead Constitution (Harvard Law Review, Vol. 125, No. 2011, 2012) on SSRN. Here is the abstract:

In what might be regarded as his standard 'stump' speech, Justice Scalia has repeatedly championed what he calls the 'dead Constitution.' The bon mot was and remains a good laugh line, but it has become increasingly inappropriate over the course of the quarter century during which Justice Scalia has been delivering it. When he was appointed to the Supreme Court in 1986, dead constitutionalism, that is to say, originalism, was still a mostly insurgent position within constitutional theory. Since then, and in no small part thanks to Justice Scalia's own influence, originalism has become a leading approach to constitutional interpretation.

Meanwhile, originalism's supposed archenemy, the living Constitution, has never been much more than a placeholder. As Professor David Strauss observes, 'the critics of the idea of a living constitution,' that is to say, originalists, "have pressed their arguments so forcefully that, among people who write about constitutional law, the term 'living constitution' is hardly ever used, except derisively.'

Highly recommended.

Crane on Enacted Legislative Findings & Deference

Daniel A. Crane (University of Michigan Law School) has posted Enacted Legislative Findings and the Deference Problem (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

The constitutionality of federal legislation sometimes turns on the presence and sufficiency of Congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a Congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord Congressional findings. This is striking because the difference between enactedness and unenactedness is so vigorously contested on questions of statutory interpretation, with textualists objecting to any reliance on legislative history and even purposivists conceding some risks. Both formal and functional considerations suggest that the enactedness line should be significant for constitutional questions as well. This is not because Congress has some comparative advantage in finding legislative facts more reliably than other governmental institutions, which is pervasively assumed but unrealistic. Rather, Congress’s strongest claim for judicial deference is that legislative findings are highly normative and hence squarely within the legislative power. Recognizing this characteristic of modern factfinding clarifies and strengthens the claim for deference — but only as to findings satisfying the constitutional requirements of bicameralism and presentment.

Allen on the Right to Privacy Tort

Anita L. Allen (University of Pennsylvania Law School) has posted Natural Law, Slavery, and the Right to Privacy Tort (Fordham Law Review, Vol. 81, pp. 1187, 2012) on SSRN. Here is the abstract:

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a city newspaper is like a slave in bondage?

I argue that the jurisprudence of Pavesich need not be troubling. Pavesich’s natural law argument was supplemented by several positive law arguments. The positive law arguments were a strong enough basis for finding a right to privacy in the common law, as indeed Samuel Warren and Louis Brandeis had previously argued. The observation that the Pavesich court’s natural law argument ran alongside positivistic arguments suggests that the arresting, high-toned natural law and slavery appeals in Pavesich are inessential rhetorical throwaways. But I maintain that the natural law argument and slavery analogy features of Judge Andrew Jackson Cobb’s opinion extolling the “liberty of privacy” are (1) of critical importance to a full contextual understanding of the decision and (2) illuminate the contemporary case for recognizing invasions of privacy as civil injuries to freedom and self-determination. One can poke holes in the logic of Thomas Aquinas and John Locke as scholars have done for centuries. But one can as easily choose to celebrate the spirit of the natural law tradition. The natural law tradition represents efforts rhetorically, rationally, and intuitively to derive principles of justice and goodness from basic facts about human characteristics, needs, and desires, where otherwise binding sovereign law may fall short.

Recommended.

Leib, Ponet, & Serota on Fiduciary Principles of Public Law

Ethan J. Leib (Fordham University School of Law), David L. Ponet (United Nations), & Michael Serota have posted Translating Fiduciary Principles into Public Law (126 Harv. L. Rev. F. 91 (2012)) on SSRN. Here is the abstract:

Because public office is a public trust, fiduciary architecture can help orient us in figuring out how political power should be exercised legitimately. Part of the appeal of conceiving the political relationship between representative and represented in fiduciary terms is that it regards politics in more realistic and textured ways — as a constellation of power relationships in a web of trust and vulnerability — rather than as a mere social contract no one ever signed. Thinking of legislators as public fiduciaries tells us much about the nature of the relationship between the governed and their governors and it can also provide some normative benchmarks for evaluating the political morality of elected representatives and for designing the institutions that channel and control their conduct.

The essay develops two points. Part I elaborates upon some of the messiness associated with identifying relevant fiduciaries and beneficiaries in the political sphere; and Part II interrogates whether judicial remedies are appropriately calibrated to generate the trust necessary for public fiduciary relationships to function well.

Dillard on Empathy with Animals & Legal Personhood

Carter Dillard (Visiting Scholar, Vulnerability and Human Condition Initiative, Feminism and Legal Theory Project, Emory University School of Law) has posted Empathy with Animals: A Litmus Test for Legal Personhood? (Animal Law Review, Vol. 19, 2012) on SSRN. Here is the abstract:

Is there any relationship between the disposition of some humans to empathize with and respond to the interests of nonhuman animals, and the criteria we ought to use for determining who becomes a legal person? This brief essay argues that there is, by employing a thick conception of legal personhood, and suggests that criteria be used to determine who constitutes our legality in the future.

Conference Announcement: The New Originalism in Constitutional Law at Fordham

I will be speaking at Fordham Law on Friday, March 1 at 1:15pm in the McNally Amphitheatre.  Here is the information on the conference. There is a terrific lineup for this conference, including Jack Balkin, Randy Barnett, and Keith Whittington, representing "new originalism," Stephen Neale and Scott Soames from the philosophy of language, and critics of originalism such as Mitch Berman. Event Description Fordham Law Review presents  The New Originalism in Constitutional Law  Friday, March 1st (9 a.m.–5 p.m.) & Saturday, March 2nd (9 a.m.–2 p.m.)  Fordham Law School, McNally Amphitheatre  140 West 62nd Street, New York City  To register, click through and then click on the register button (near the top of the page). Program Description: Originalism—the thesis that legitimate constitutional interpretation is bound by original meaning or intent—has emerged as an influential and controversial approach to how we interpret our Constitution. While some claim that constitutional interpretation and legitimacy require unearthing original meaning or intent, others assert that tethering current citizens and interpreters to the comprehension of long-dead people is the antithesis of good and proper democratic government.  The Fordham Law Review is proud to present a symposium gathering a remarkable group of legal scholars, historians, and philosophers to discuss if, how, and why Originalism should inform constitutional analysis.  Program Schedule: Friday, March 1  9:00 – 9:45 Coffee and Registration in McNally Atrium, Fordham Law School  9:45 – 10:00 Welcoming Remarks in McNally Amphitheater, Fordham Law School  10 - 11:45 Panel 1: Overview: The Arc of Originalism  How did originalism come onto the legal and academic scene in constitutional law and how has it changed? Are “Original Intent,” “Original Understanding,” “Original Public Meaning,” and “Textualism” distinct from one another? Which issues – substantive, theoretical, and methodological – currently merit closest scrutiny? To what extent have academic debates influenced judicial decisionmaking in the methodology of constitutional interpretation?  Randy Barnett, Georgetown Law School  James Fleming, Boston University School of Law  Keith Whittington, Princeton University, Politics  Benjamin Zipursky, Fordham University School of Law  11:45 – 1:15 Lunch Break  1:15 – 2:45 Panel 2: The Meaning of Meaning in Constitutional Interpretation (Part I) To what extent can constitutional meaning be detached from what constitutional ratifiers or framers intended to say; how can meaning be detached from what was meant? To what extent can semantic meaning play a central role in constitutional interpretation? Does semantic meaning need to be supplemented in the process of interpretation? Is the interpretation/construction distinction tenable and useful? To what extent can meaning be derived from dictionaries?  Larry Alexander, San Diego Law School  Mitch Berman, University of Texas Law School  Larry Solum, Georgetown Law School  2:45 - 3:15 Break  3:15 - 5:00 Panel 3: The Meaning of Meaning in Constitutional Interpretation (Part II)  Andrei Marmor, University of Southern California, Philosophy & Law  Stephen Neale, City University of New York, Graduate Center, Philosophy  Tara Smith, University of Texas, Philosophy  Scott Soames, University of Southern California, Philosophy  5:00 - 6:00 Reception in McNally Atrium  Saturday, March 2 (Day 2 of Symposium)  9:00 - 9:30 Coffee and Bagels  9:30 – 10:55 Panel 4: The Role of History in Constitutional Interpretation  If one believes that understanding constitutional history is critical to interpreting the constitution, does that make one an originalist? Are there models of the relevance of constitutional history in constitutional interpretation that do not qualify as forms of originalism? When is history relevant to constitutional interpretation, and why? Do the framers, ratifiers, lawyers, scholars, laypeople, or some combination of the above provide appropriate objects of study?  Jack Balkin, Yale Law School  Saul Cornell, Fordham University, History  Andrew Kent, Fordham University School of Law  Thomas H. Lee, Fordham University School of Law  10:55 - 11:05 Break  11:05 – 12:30 Panel 5: Constitutional Theory With and Without Originalism  Why has so much of the terrain of constitutional theory been dominated by various forms of originalism in the past thirty years, given the variety of non-originalist approaches to constitutional interpretation? Can other theoretical models address legitimacy concerns as well as forms of originalism (or better)? Are the concerns driving originalism sufficient to narrow the domain of arguments in constitutional law? Should the past -- original intent or meaning, or precedent -- be even presumptively binding in constitutional interpretation? If so, why? If not, what is the appropriate ground for constitutional interpretation?  Abner Greene, Fordham University School of Law  Leslie Goldstein, University of Delaware, Political Science (Emerita)  Bernadette Meyler, Cornell Law School  William Michael Treanor, Georgetown Law School  12:30 Lunch and Farewell

Location Information: Lincoln Center Campus - Fordham University School of Law  (View Map) 140 West 62nd St  New York, NY 10023 New York Room: James B.M. McNally Amphitheatre