Legal Theory Blog

Mandal on International Law and Climate-Induced Gender Violence

Moumita Mandal (TERI School of Advanced Studies) has posted Role of International Law to End Climate-Induced Sexual and Gender-Based Violence: A Critical Analysis of Recommended Solutions on SSRN. Here is the abstract:

Climate change is a threat to the existence of humans and other beings on Earth. Though all human beings are affected by climate change, women and girls suffer the most. Women are subjected to different forms of sexual and gender-based violence (SGBV) during and after natural calamities. They are exposed to SGBV due to the weak or absence of social, economic, and political security and the culture of widespread impunity to the perpetrators. To date, no specific international legal instrument deals with SGBV against women. It is found that climate change exacerbates SGBV against women and girls. The subject-specific international human rights treaty, e.g., the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), deals with the issue of SGBV under the rubric of discrimination. It reduced the effectiveness of the CEDAW against SGBV. The texts of the three international legal instruments relating to climate change (1992 UNFCCC, 1997 Kyoto Protocol, and 2015 Paris Agreement) do not address this issue. It has been given little attention only through the decisions of the Conference of the Parties of the UNFCCC. It is a new challenge for all and a global common concern. Now the question is what is the solution to this global problem? The soft and hard international laws provide a few solutions or remedies. Also, many institutions are trying to find solutions and regularly providing recommendations and suggestions. This study has discussed the causal connection between climate change and SGBV as a part of the discussion of the rise of ecofeminism; critical analysis of solutions recommended by international law and different institutions; and identified a few possible solutions that may be possible to implement partially to end climate-induced SGBV.

Williams on Regression and Demographic Shifts

Ryan T. Williams (Duquesne University School of Law) has posted The Great Regression (The Michigan State Law Review, 2024)) on SSRN. Here is the abstract:

The United States has historically been dominated by affluent White male leadership. However, recent decades have witnessed significant demographic and sociopolitical shifts. The civil rights movement and landmark decisions like Roe v. Wade paved the way for women and underrepresented minorities to enter the white-collar workforce and rise to prominent positions. Concurrent with these advancements are demographic projections indicating America will become a majority-minority nation within the next twenty years, causing the predominantly White male establishment to become acutely aware of their diminishing sociopolitical influence. This article scrutinizes recent Supreme Court's decisions, which appear to be reactionary measures. It examines how the seminal rulings of Twombly, Iqbal, Dobbs, and Students for Fair Admissions, have systematically undermined the progress of women and minorities by imposing more stringent requirements for discrimination lawsuits, stripping women of reproductive rights and eliminating race as a factor in college admissions. These judicial decisions exacerbate existing disparities at the intersections of gender, race, and class, and intentionally embed systemic inequity within the legal framework. This article delves into the broader implications of these rulings, arguing that they represent a strategic effort to restore White male hegemony within power structures. By analyzing the historical context and legal nuances of these decisions, this article offers a critical perspective on the ongoing struggle for equality and the subtle mechanisms through which power is retained. This exploration is essential for understanding the current and future landscape of American sociopolitical dynamics and the role of the judiciary in shaping these outcomes.

Krishnamurthy on the Law of the Sea and the Internet

Vivek Krishnamurthy (University of Colorado at Boulder - University of Colorado Law School; Harvard University - Berkman Klein Center for Internet & Society) has posted Anchoring Digital Sovereignty (Chicago Journal of International Law, Vol. 25.2 (forthcoming Jan. 2025)) on SSRN. Here is the abstract:

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet’s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world’s democracies to keep the Internet free, open, and global; yet it is not the only way that international law knows to define the powers of a state.

Drawing from the law of the sea, this Article argues that we should anchor the nature of state authority in cyberspace in the limited sovereign rights that coastal states possess in the waters off their shores. Unlike the plenary powers that sovereignty vests in states over their entire land territory, a coastal state’s sovereign rights weaken the further one goes out to sea, and they are subject to the rights of other states (and of their nationals) to engage in certain peaceful uses of such waters. By redefining state authority over cyberspace in terms of layers of sovereign rights that are subject to the digital rights of others, states can enact legitimate online regulations within international legal constraints that preserve the Internet’s free, open, and global character.

Very interesting and recommended!

Luban on the Crime of Aggression and Immunity

David Luban (Georgetown University Law Center) has posted The Crime of Aggression: Its Nature, the Leadership Clause, and the Paradox of Immunity (Forthcoming in, Elsevier Research Handbook on International Legal Theory (Eliav Lieblich & Tom Dannenbaum eds. 2024)) on SSRN. Here is the abstract:

The paper, written for a research handbook, critically surveys some fundamental philosophical, historical, and doctrinal issues in the crime of aggression. The two introductory sections set the theoretical issues in the context of Russia’s invasion of Ukraine, and explain the origins of criminalizing aggression under the heading of “crimes against peace.” Section 3 explores an ambiguity between aggression as first use of force and aggression as unprovoked use of force, while section 4 discusses the doctrinal distinction between acts of aggression and wars of aggression.

Sections 5 and 6 turn to the theory of aggression. Section 5 examines modern versus early modern just war theorists’ views of just cause. Section 6 explores various theories of what exactly makes aggressive war so evil that it belongs in the pantheon of core crimes, side by side with genocide, crimes against humanity, and other war crimes. The basic question is whether aggression is fundamentally a crime against states, a crime against human rights, or a crime against peace itself. I reject the first, statist, version, and endorse the human rights version. I examine three versions of the view that aggressive war is fundamentally about its human costs: that aggressive wars lead to atrocities (Trainin); that aggressive wars lead more generally to unjustified killings (Dannenbaum); and that aggressive wars lead to both unjustified killings by the aggressor, and to unnecessary killings that include the justified killings of aggressors’ troops by defenders (Mégret). As for crimes against peace, I argue that this theory of aggression’s evils comes in two “flavors,” one of which has justly been criticized by postcolonial writers, and one of which I think is legitimate. The former originates in Judge Pal’s famous dissenting opinion in the IMTFE, and argues that criminalizing aggression is a move by colonial powers to freeze the oppressive status quo. The more legitimate version is that in an age of catastrophically destructive weapons, the risks of escalation in armed conflict –the threat that conflicts will spiral into world wars–are simply too great in human terms. Thus, the legitimate version of “crimes against peace” is part and parcel of the human rights analysis.

The final sections break new ground. Section 7 considers whether aggression is solely a leadership crime. Everyone agrees that it would be wrong to punish ordinary soldiers for the crime of aggression launched by their leaders. The questions is why, and it is not easy to answer. Examining it brings us to a contemporary dispute over which leaders can be prosecuted: only those who control or direct the aggressive policies (as per the ICC’s Rome Statute), or others as well, who “shape or influence” the policy without necessarily directing it (as the customary rule used to be formulated). I argue against any narrowing of the leadership clause.

Section 8 explores the “paradox of immunity”: Under the legal principle of sovereign immunity, apex leaders are immune from prosecution in the courts of another state. But under the narrow leadership clause, only apex leaders can be prosecuted. Here I argue for a surprising conclusion: that in fact there never was a customary rule of immunity for the crime of aggression. If so, the paradox of immunity disappears. This resolution also helps cut the Gordian knot of a current debate about whether a relatively small subset of states (the EU, perhaps) can form an aggression tribunal and call it “international.”

Highly recommended.

Call for Nominations: "Best Untenured Article Award" (AALS Section on Federal Courts)

CALL FOR NOMINATIONS

Best Untenured Article Award

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2025 AALS Annual Meeting.

The purpose of the award program is to recognize outstanding scholarship in the field of Federal Courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2024 (date of actual publication deter-mines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of October 1, 2024), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Professor Marin Levy at Duke University School of Law ([email protected]).

Without exception, all nominations must be received by 11:59 p.m. (EDT) on October 1, 2024. Nominations will be reviewed by a prize committee comprised of Professors Payvand Ahdout (University of Virginia School of Law), Kellen Funk (Columbia Law School), Tom Lee (Fordham School of Law), Marin K. Levy (Duke University School of Law), and Richard Re (University of Virginia School of Law), with the result announced at the Federal Courts Section program at the 2025 AALS Annual Meeting.

Chachko on the Anti-Regulation Quarter of Supreme Court Decisions

Elena Chachko (UC Berkeley School of Law) has posted The Anti-Regulation Quartet and Internationally Informed Regulation (Harvard Law Review) on SSRN. Here is the abstract:

Two terms ago, the Supreme Court delivered the Major Questions Quartet. This term produced what commentators widely view as the Anti-Regulation Quartet. The Supreme Court delivered four decisions that, taken together, will likely make life much harder for regulators. The Anti-Regulation Quartet has triggered intense debate and analysis. One important area that has not received much attention, however, is internationally informed agency action. International engagement is widespread in agency practice through implementation of international agreements, adoption of soft law regulatory standards, harmonization of regulations with foreign countries, incorporation of general foreign policy objectives in regulation and more. Internationally informed agency action raises a distinctive set of doctrinal complications left unaddressed by the Court.

In Loper Bright Enterprises v. Raimondo, the Court overruled Chevron’s formulation of deference to agency interpretations of statutes. In SEC v. Jarkesy, the Court held that the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against them, possibly deflating a powerful SEC enforcement tool. In the somewhat less publicized case of Corner Post v. Board of Governors of the Federal Reserve System, the Court opened a path for litigants newly injured by final agency action to challenge it regardless of the APA’s six-year statute of limitations. The implication is that even older, settled regulations could now face new legal challenges. And in Ohio v. EPA, the Court indicated that courts should apply more exacting standards than the current status quo in reviewing how agencies respond to comments in notice and comment rulemaking.

In this essay, I highlight the unique features of internationally informed regulation and outline preliminary thoughts about the potential implications of the Court’s decisions. One key implication is that a host of internationally informed regulations that don’t fit within the Court’s idea of foreign affairs and national security actions have been made much more vulnerable by the Anti-Regulation Quartet. Clear-cut foreign affairs and national security actions are unlikely to be significantly affected. But internationally informed agency actions outside a vaguely defined foreign affairs and national security core are now at greater risk — at least as a matter of doctrine.

Internationally informed regulation also encapsulates and highlights the tension between the Court’s staunch constitutional presidentialism and its deep skepticism of the administrative state. That tension complicates predictions on how the Court might assess internationally informed regulations in the future. Internationally informed regulation is intertwined with the President’s foreign affairs powers, and yet it is unlikely to benefit from the Court’s deference to the President in that area.

de Britto on the Social Function of Copyright

Vitoria Maturana de Britto (Munich Intellectual Property Law Center (MIPLC)) has posted The Social Function of Copyright on SSRN. Here is the abstract:

This thesis deals with the need to recognize a balance between the individual rights conferred on authors in the copyright system and the common interests of society. It investigates the application of the social function to copyright. In this sense, this theory indicates that no individual right should be considered absolute and that there should always be a balance between individual rights and the common interests of society. This approach also goes through the concepts of common interest and what this balance of interests means.

The common interest refers to the general social interest, not the sum of individual interests. Furthermore, it is not necessarily the interest imposed by a government, but a social objective. The balance that must be made is between individual rights and the common interest, which can also be identified through individual rights that have been recognized based on common objectives, such as fundamental rights.

In the context of copyright, based on its justifications and the limits and exceptions already established in legal systems, we analyze its common interest in promoting the cultural development of society, as a way of contributing on a general and personal level to the construction of individuals' personal perception. Because of this common interest, there are two rights, the right of access and the right of creation/reuse, which must be balanced against the exclusive rights of authors of artistic and literary works.

Finally, let's look at the Pelham case, judged by the CJEU, as an example of the need for greater attention to be paid to the application of the social function to copyright, in the context of sampling techniques in the music industry.

Legal Theory Lexicon: Meta-Level Arguments

Introduction

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

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

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

Internal and External Critique of Meta-Level Theories

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

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

Public Reasons and Deep Theories

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

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

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

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

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

Outcome Arguments and Process Arguments

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

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

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

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

The Method of Reflective Equilibrium

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

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

Conclusion

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

Related Lexicon Entries

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

(Last revised on September 28, 2024.)

Legal Theory Bookworm: "Historical Gloss and Foreign Affairs" by Bradley

The Legal Theory Bookworm recommends Historical Gloss and Foreign Affairs: Constitutional Authority in Practice by Curtis A. Bradley.  Here is a description:

A new interpretation of the constitutional law of foreign affairs, as it has been developed throughout its history by presidents and by Congress.

In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly. But that evolution did not come through formal amendments or Supreme Court rulings. Rather, the law has been defined by the practices of Congress and the executive branch, also known as “historical gloss.”

Curtis A. Bradley documents this process in action. He shows that expansions in presidential power over foreign affairs have often been justified by reference to historical gloss, but that Congress has not merely stepped aside. Belying conventional accounts of the “imperial presidency” in foreign affairs, Congress has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority.

Historical Gloss and Foreign Affairs proposes a constitutional theory that can make sense of these legal changes. In contrast, originalist theories of constitutional interpretation often ignore influential post-Founding developments, while nonoriginalist theories tend to focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch. Moreover, the constitutional theories that do focus on practice have typically emphasized changes at particular moments in time. What we see in the constitutional law of foreign affairs, however, is the long-term accumulation of nonjudicial precedents that is characteristic of historical gloss. With gloss confirmed as a prime mover in the development of foreign affairs law, we can begin to recognize its broader status as an important and longstanding form of constitutional reasoning.

And from the reviews:

“An instant classic. As the foremost scholar in the country on the Constitution and foreign affairs, Curt Bradley has written the single best book on the subject. Historical Gloss and Foreign Affairs is a must-read for anyone interested in understanding how constitutional law develops, and it could not be timelier.”―Michael Gerhardt, University of North Carolina School of Law

“Outstanding. With acuity and nuance, Curt Bradley explains how presidents have come to be so mighty and how Congress can check them when it wishes. What a splendid book!”―Jean Galbraith, University of Pennsylvania Carey Law School

“Historical Gloss and Foreign Affairs is the definitive account of the unique ways that historical practice informs the allocation of constitutional power in foreign affairs, where constitutional text is very often a poor guide to legitimate practice. Its powerful explanation of how historical gloss informs constitutional meaning is also a vital contribution to constitutional theory more generally.”―Jack Goldsmith, Harvard Law School

“One of the finest books about the foreign relations law of the United States ever written. Bradley provides a masterful analysis of all the important topics and makes a convincing case about the role of historical gloss in shaping doctrine.”―Paul Stephan, University of Virginia School of Law

“An incisive guide to how the Constitution has accommodated dramatic shifts in the conduct of foreign affairs throughout its history―and how it might continue to do so going forward.”―Monica Hakimi, Columbia Law School

Download of the Week: "Looking for the Public in Public Law" by Menezes & Pozen

The Download of the Week is Looking for the Public in Public Law by Nikhil Menezes & David Pozen. Here is the abstract:

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the American public as playing myriad roles in governance—checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on the questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and intellectual history, and to propose a pragmatic response—grounded in the recovery of the public’s role as an author and not just a monitor of public law. We first detail how public law’s stylized appeals to the public reflect analytic imprecision and inattention to the values, views, and votes of actual people. We then show how these omissions and obfuscations leave public law vulnerable to critiques from both the left and the right, which have been gaining force on account of broad transformations in the administrative state, social structure, and public sphere. It may not be possible to resolve these dilemmas fully or to redeem the public writ large as an agent in public law. But drawing on recent political science work on deliberative democracy, we outline a research and reform agenda for identifying, constructing, and empowering coherent publics (plural) capable of legitimating legal change.

Highly recommended. Download it while it's hot!