Legal Theory Blog

Wald on Rules of Professional Conduct, Access to Legal Services, and Social Justice

Eli Wald (University of Denver Sturm College of Law) has posted The Access and Justice Imperatives of the Rules of Professional Conduct (Georgetown Journal of Legal Ethics, Vol. 33, No. 1, 2022) on SSRN.  Here is the abstract:

The rules of professional conduct are the backbone of legal ethics. The primary objective of legal ethics, and thus of the rules, is protecting clients, the legal system, the public, and justice. Increasingly, however, the rules fail at protecting the public and advancing justice. The problem does not lie with a particular rule. Rather, the rules are based on antiquated assumptions, which no longer reflect some of the fundamental needs of clients and the public nor the practice realities of lawyers. To fulfill their objective, the rules must address the contemporary needs of clients and the public: they must help address the problem of insufficient access to lawyers for those who cannot afford to pay for legal services, and they must meaningfully address widespread forms of inequality, including gender and racial injustices. The Article explains and rejects the legal profession’s traditional defense of the rules pursuant to which lawyers are three-legged stools who effectively balance the interests of clients, the legal system, and the public. Instead, the Article advances the best possible defense of the rules, an account in which lawyers serve the public by serving clients and advancing the Rule of Law but shows that this account is unsustainable given contemporary practice realities. Prevalent insufficient access to lawyers, changing power dynamics between clients, lawyers, and non-lawyers, and persistent injustices mean that lawyers can no longer credibly claim to indirectly serve the public by serving paying clients. Rather, the rules should be revised to mandate that lawyers increase access to legal services and pursue justice directly. The Article concludes by developing an access and justice-driven agenda for reforming the rules.

Castro on Cyberspace and the Constitution

Raquel Castro (University of Lisbon - Institute of Legal and Political Sciences) has posted Cyberspace and Constitution on SSRN.  Here is the abstract:

Issues raised by cyberspace have real impact on constitutional justice and constitutional interpretation. At a normative level, any over-interpretation reflects the result of exacerbating the conditions for concretization – by overestimating the impact of real facts and the specific problem to be solved.

For today's technological reality, a technologically neutral constitutional interpretation should ensure the expression of the constitutional values that have been positively stated – explicitly or implicitly inferred from – in constitutional norms, saving the constitutional identity within the limits of the constitutional text.

At a regulatory field where the pace of legislative intervention and its corresponding density are particularly problematic, it becomes crucial to ascertain whether the expected increase in judicial activism – namely through the creation of “ad casum” rules – should be subject to constitutional justice scrutiny.

In fact, these new cyberspace challenges call for a regulatory recasting, focused on the activity actually carried out and on the effective impact of restrictive interventions. Cyberspace’s current regulatory vagueness does not legitimize constitutional states of exception, other unforeseen or omitted norms, or even a "Constitutional Law of the Enemy”.

Smith on Witness Exclusion and the Right to a Public Trial

Stephen Smith (Santa Clara University - School of Law) has posted 'The Rule' and the Constitution: Witness Exclusion and the Right to a Public Trial (56 UIC Law Review 1 (2022)) on SSRN.  Here is the abstract:

Federal and state rules of evidence provide for the exclusion of potential witnesses from the courtroom. But, in criminal proceedings, the Sixth Amendment’s right to a public trial presumes that a courtroom will be open. The public trial right has been widely interpreted to restrict even “partial closures” – the exclusion of an individual or group from a criminal courtroom. The rule on witnesses is potentially at odds with the right to a public trial. Witness exclusion, by rule, is almost automatic. The Sixth Amendment, on the other hand, requires heightened scrutiny before individuals may be excluded from the courtroom. Criminal defendants have accordingly objected to the exclusion of witnesses from their trials as violations of the right to a public trial. This short article concludes that there are two reasons that standard implementation of the Rule is not a Sixth Amendment violation. The first is that historical understandings of the Sixth Amendment’s public trial right would have contemplated the use of longstanding witness sequestration rules. The second is that witness sequestration causes no meaningful prejudice to the amendment’s purposes. This article also concludes that there are some circumstances where sequestration requests must give way to Sixth Amendment demands and proposes an approach to distinguishing between routine exclusions and those that demand a more searching inquiry.

Pojanowski & Walsh on "Common Good Constitutionalism" by Vermeule

Jeffrey A. Pojanowski (Notre Dame Law School) & Kevin C. Walsh (Columbus School of Law, The Catholic University of America) have posted Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the Constitution of the United States with his book, Common Good Constitutionalism. As scholars working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Nevertheless, we find Vermeule's rendition wanting. He neglects the way in which the classical legal tradition calls for obedience to the Constitution of the United States as not just the law, but also a law—an ordinance of reason, for the common good, made by one with authority, and promulgated. Vermeule’s version of constitutionalism, which too often substitutes Dworkin’s hermeneutics for a classical understanding of law, is attentive to certain conceptions of reason and the common good, but inattentive to authority and promulgation. With respect to all four of these elements, moreover, Vermeule’s constitutionalism is unanchored historically. He argues for “classical constitutionalism” that is not “enslaved to the original meaning of the Constitution.” But obedience to original law except as lawfully changed is not akin to enslavement that one must overcome. A real law deserves our real obedience, but Vermeule’s version of common good constitutionalism is indifferent—rather than obedient—to the promulgated Constitution. Vermeule's new theory of common good constitutionalism is not a sound classical approach to our Constitution, but rather a deft Dworkinian account that fits and justifies a different order than the one we have inherited.

Highly recommended.

Rozenshtein & Shugerman on January 6 & Free Speech

Alan Z. Rozenshtein (University of Minnesota Law School) & Jed Handelsman Shugerman (Fordham Law School) have posted January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution (37 Constitutional Commentary (forthcoming 2023)) on SSRN.  Here is the abstract:

A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to the remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol.

These overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving the First Amendment’s historically strong protections for inflammatory but non-inciting political speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by prerevolutionary English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited speech by our political officials is of the utmost importance. This essay is an attempt to make that line clearer.

Recommended.

Peters on Global Constitutionalism

Anne Peters (Max Planck Institute for Comparative Public Law and International Law) has posted Against a Deconstitutionalisation of International Law in Times of Populism, Pandemic, and War (Forthcoming in: Journal of Constitutional Justice (December 2022)) on SSRN.  Here is the abstract:

In the context of a power shift away from the Western world, disenchantment with globalisation, and the rise of post-colonialist and post-humanist thinking, global constitutionalism is under pressure. The factual acceptance and normative appeal of the constitutionalist ‘trinity’ of the rule of law, human rights, and democracy needs to be re-examined. Erosions and attacks concern all three principles, and also institutions that embody them such as the International Criminal Court and the regional human rights courts. However, constitutional fragments in the international legal order (in its interplay with domestic law) appear to be resilient, in the context of ongoing, though slowed-down globalisation. We perceive islands of constitutionalism and an ongoing constitutionalisation in international law such as the recent reform of the working methods of Security Council in the direction of transparency (with an obligation to give reasons for the exercise of the veto). The paper argues that global constitutionalism can and must be updated and adapted by addressing its colonial legacy and its Eurocentrism. It must accommodate cultural pluralism while insisting on a bottom line of universal values that should not be undercut. Global constitutionalism must also avoid double standards while properly distinguishing situations in law and fact. Finally, global constitutionalism needs to become more social by incorporating transnational social rights, strengthening investor obligations, further operationalising the international legal principle of transboundary solidarity, and acknowledging the nexus between the rule of law and development.

Legal Theory Lexicon: Deference

Introduction

Because the first-year curriculum emphasizes common-law courses (property, contracts, torts), law students may not encounter the concept of "deference" early on.  Nonetheless, understanding deference is important in a wide variety of contexts, including standards of appellate review and judicial review of both legislation and administrative action.  This entry in the Legal Theory Lexicon provides a short introduction to the idea of deference.

As always, the Lexicon is aimed at law students with an interest in legal theory.

The Concept of Deference

What does "deference" mean?  The standard dictionary definitions define deference as "respect and esteem due a superior or an elder," but that is not the technical legal meaning of deference.  Pinning the concept of "deference" down in a precise way is tricky, but deference seems to involve a relationship between two legal actors or institutions, for example a court and a legislature.  Deference usually involves situations in which the deferring institution has some power over the institution to which it might defer.  Examples include (1) an appellate court reviewing the decision of a trial court, (2) a court reviewing the constitutionality of legislation, and (3) a court reviewing the legality of action by an administrative agency.

What does it mean to defer to a trial court, legislature, or administrative agency?  One approach to that question is to consider the opposite of deference.  Nondeferential appellate review of a trial court decision is "de novo": de novo review requires the appellate court to resolve the issue without regard to the action taken by the trial court.  Thus, de novo review of a trial court's conclusions of law gives no weight to the fact that the trial court has taken a position on the legal question.  But when it comes to a trial court judge's findings of fact, the appellate court does defer.  Findings of fact made by a trial court judge are reviewed under the deferential "clearly erroneous" standard.  The appellate court will only reverse the trial court if the appellate judges are convinced that the error is "clear."  The finding of fact may be wrong, but not clearly erroneous.  The clearly erroneous standard does give weight to the factual determination made by the trial court.

Degrees of Deference

The conventional wisdom is that deference is a matter of degree and not an off-on switch.  That is, deference is a scalar and not a binary.  For example, the standards of appellate review of trial court decisions are usually ranked as follows:

Most deferential: Abuse of discretion, applies to discretionary decisions by the trial court.

Intermediate deference: Clearly erroneous, applies to factual determinations by trial judges.

Least deferential: De novo, applies to issues of law.

There are interesting questions about the spectrum of deference.  One interpretation of the spectrum would assign probability values to degrees of deference.  For example, the de novo standard might be interpretation as requiring reversal of a trial court decision if the likelihood that it is incorrect is greater than 0.5.  The clearly erroneous standard might be assigned a value of 0.7 and the abuse of discretion standard could be 0.1.  But the probability interpretation might not be correct: it could be argued that the different standards  of appellate review are qualitatively different.

Deference in the Context of Judicial Review of Legislation

Another important context in which the concept of deference operates is judicial review of legislation for constitutionality.  For example, in the context of the Equal Protection Clause, the Supreme Court sometimes applies tiers of scrutiny.  Rational basis review is highly deferential.  In the most deferential form of rational basis review, legislation is upheld so long as the legislature could conceivably have had a legitimate aim in enacting the legislation and conceivably could have believed that the legislation was a rational means of pursuing that aim.  Intermediate scrutiny (which applies to gender) requires more, an important aim and a reasonable relationship between the means and end of the legislation.  Strict scrutiny (which applies to race) involves the lowest level of deference: legislation will be upheld only if there is a compelling state interesting and the legislative means are actually necessary to achieve this compelling end.

Rational basis scrutiny provides one of the paradigm cases of deference.  Even within this category, there seem to be different approaches.  The conceivable basis variant of rational basis review is so deferential that it is hard to imagine any legislation that would fail to satisfy the test.  But if the government is required to show that the legitimate state interest was the actual purpose of the legislation and that there is evidence supporting the means-ends relationship, then even a deferential standard of review might result in the invalidation of legislation.

Deference and Judicial Review of Agency Action

In recent years, the term "deference" arises most frequently in connection with the "Chevron doctrine," which involves judicial deference to agency interpretations of regulatory statutes.  The basic idea of Chevron deference is that courts should defer to the agency's interpretation of the statute, if the statute is unclear ("ambiguous") and the agency's interpretation is reasonable.  This form of deference is controversial, because it is in tension with the traditional conception of judicial role that assigns to courts the primary and ultimate authority for the interpretation and construction of legal texts.

Conclusion

There is much more to be said about the idea of deference, but I hope that this brief discussion is sufficient convey the basic idea of deference and to illustrate its application in a variety of contexts.  Additional reading is provided in the bibliography.

Related Lexicon Entries

• Legal Theory Lexicon 054: Standards of Review
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 091: Discretion

Bibliography

• Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).
• Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78 Ind. L.J. 73 (2003).
• William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1120 (2008).
• Jacob E. Gersen & Adrian Vermeule, Chevron As A Voting Rule, 116 Yale L.J. 676 (2007).
• Jonathan T. Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role, 53 Stan. L. Rev. 1 (2000).
• Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.

(Last revised on October 28, 2022.)

Legal Theory Bookworm: "A Principled Constitution?" by Smith, Alexander, Allan, & Schwarzschild

The Legal Theory Bookworm recommends A Principled Constitution?: Four Skeptical Views by Steven D. Smith, Larry Alexander, James Allan, & Maimon Schwarzschild.  Here is a description:

Is the United States Constitution the embodiment of certain principles? The four authors of this book for a variety of reasons, and with somewhat different emphases, believe the answer is no. Those who authored the Constitution no doubt all believed in liberty, equality, and, with caveats, republican self-government values, or if you will, principles. But they had different conceptions of those principles and what those principles entailed for constituting a government. Although the Constitution they created reflected, in some sense, their principles, the Constitution itself was a specific list of do’s and don’ts that its creators hoped would gain the allegiance of the newly independent and sovereign states. And, for somewhat different reasons, the authors of this book believe that was a good thing.

Download of the Week: "Election Reform" by Hasen

The Download of the Week is Election Reform: Past, Present, and Future by Richard L. Hasen.  Here is the abstract:

This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.

Highly recommended.

Fairfax on Corporate #BLM Speech

Lisa M. Fairfax (University of Pennsylvania Carey Law School - Institute for Law and Economics) has posted Racial Rhetoric or Reality? Cautious Optimism on the Link Between Corporate #BLM Speech and Behavior (2022 Colum. Bus. L. Rev. 118 (2022)) on SSRN.  Here is the abstract:

The summer of 2022 marks the two-year anniversary of the dramatic rekindling of the #BlackLivesMatter movement because of the murders of George Floyd, Breonna Taylor and other unarmed Black people at the hands of police. The summer of 2020 saw cities in the United States and around the world erupt in protest, with calls to dismantle racist policies and practices both in the criminal system and within the broader society, with a particular emphasis on policies and practices impacting Black people. The summer of 2022 also marks the two-year anniversary of the visible and somewhat surprising avalanche of corporate statements proclaiming solidarity with the Black community, condemning racism and bigotry, and pledging to help eradicate racist policies and practices within their own institutions. Corporations and their brands inundated the public with black squares, #BlackLivesMatter signs, and emphatic insistence that corporate leaders would “not be silent about our fight against racism and discrimination,” and that they would “do more . . . and do it now.”

Most commentators viewed these corporate statements with severe skepticism, characterizing them as “cheap talk,” a “marketing ploy,” or “an outright lie.” Relying on original empirical research, this Article refutes that skepticism and demonstrates that, just one year later, many corporations followed through on their talk with actions aimed at promoting diversity and eroding racist and discriminatory practices. This Article makes three critical assertions with respect to these corporate statements. First, this Article uses original empirical research to reveal that the vast majority of the corporate statements made in the summer of 2020 embodied a commitment to actively work against racism and discrimination and actively promote diversity and inclusion. Second, this Article draws upon original empirical research to refute critics and demonstrate that, on the one-year anniversary of these commitments, many corporations followed through on their speech with concrete actions, at least with respect to their boards. Third, after examining the impact of structural limitations and other roadblocks, this Article sounds a note of caution about whether and to what extent we can expect long-term changes in corporate behavior that meaningfully moves the needle on improving racial diversity and equity in the corporate sphere.