Legal Theory Blog

Legal Theory Bookworm: "The Meese Revolution" by Calabresi & Lawson

The Legal Theory Bookworm recommends The Meese Revolution: The Making of a Constitutional Moment by Steven Gow Calabresi & Gary Lawson. Here is a description:

The Meese Revolution explores how Ed Meese became the most powerful and important Attorney General in American history.

Edwin Meese III is the most influential person ever to hold the office of U.S. Attorney General – and almost no one knows it. Ed Meese was at the center of virtually every major accomplishment of Ronald Reagan’s transformative presidency, from winning the Cold War without firing a shot to the economic boom that by the end of the 1980s was the envy of the world. More to the point for this book, Ed Meese is the person most responsible for the rise of constitutional originalism, which treats the text and original meaning of the Constitution rather than the policy fads of the moment as authoritative law.

In 2024, originalism is a major force in the courts, with a majority of Supreme Court justices and a raft of lower-court and state-court judges at least taking it seriously as a major contributor to decision-making. That result was unthinkable in 1985 when Meese took office and originalism was essentially unknown to the legal academy and almost wholly absent from the judicial process. Ed Meese turned the U.S. Department of Justice into “the academy in exile,” where originalism was developed, refined, theorized, and put into practice.

This book describes the rise of originalism, which necessitates telling the story of Ed Meese, without whom it surely does not happen. Meese’s story threads through virtually all important legal and policy events of the 1980s, many of which continue to shape the world of the twenty-first century. We are still living through the Meese Revolution.

And from the reviews:

"The Meese Revolution is more than just a biography of an influential figure. It is required reading for anyone from any political persuasion who wants to understand the recent history of the Supreme Court. Told by two insiders, the book explains how a once little-known idea championed by Reagan’s attorney general ended up shaping the law of the land. This is the untold and crucial story of how originalism, the now dominant approach to constitutional interpretation, entered the mainstream."—Corey Brettschneider, author of The Presidents and the People 

"The most important Attorney General in American history? Read this tour de force and decide for yourself!"—Akhil Reed Amar, Sterling Professor of Law, Yale University

Download of the Week: "The Ordinary Questions Doctrine" by Bressman

The Download of the Week is The Ordinary Questions Doctrine by Lisa Schultz Bressman. Here is the abstract:

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron as inconsistent with the Administrative Procedure Act (“APA”), which requires courts to decide “all relevant questions of law” and therefore prohibits them from deferring to agency interpretations because the relevant statutory language is ambiguous. A different approach now governs judicial review of the countless routine, often specialized questions of statutory interpretation that agencies answer in the normal course of implementing their statutes—the “ordinary” questions. But Loper Bright did not provide direction on how courts should determine which of these questions are questions of law. This issue arises because many, if not most, ordinary questions involve questions of law that depend on questions of policy for resolution and can be characterized either way for purposes of judicial review. Under Chevron, courts did not need to decide how to characterize such mixed questions because the doctrine instructed them to treat statutory ambiguities as presenting questions of policy for the agency to decide. That directive eased the pressure of determining how to handle such questions for purposes of judicial review under the APA. Loper Bright has altered the doctrine but not the nature of ordinary questions. Even though courts may no longer treat these questions as ones of policy “simply because the statute is ambiguous,” they do not need to characterize every question as one of law simply because a statutory term or phrase is involved. Many agency interpretations are no different in kind or degree from the agency policy decisions subject to the arbitrary and capricious standard of review in the APA. Courts determine which of the underlying questions are for them to decide independently and which are for the agency to decide, subject to the arbitrary and capricious test. This is a judicial policy choice, and we should be interested in how courts make it. Before Chevron, courts made the choice on an ad hoc basis. After Loper Bright, the temptation is for courts to ignore the problem and decide what they can. This Foreword contends that courts should make the choice mindful of established judicial norms for questions of policy. More specifically, a court should consider whether resolving a question itself would amount to judicial policymaking in the relatively concrete ways that the arbitrary and capricious test discourages. The claim is not that courts should apply the arbitrary and capricious test straight away to ordinary questions. Rather, the considerations for applying that test are useful in the first instance to discern whether a question is best regarded as one of law or policy, consistent with the APA and the normative values that undergird the allocation of authority between courts and agencies.

Highly recommended!

Bambauer & Teplinsky on Standards of Care for Software Liability

Derek E. Bambauer (University of Florida Levin College of Law) & Melanie Teplinsky (American University - Washington College of Law) have posted Standards of Care and Safe Harbors in Software Liability: A Primer on SSRN. Here is the abstract:

The National Cybersecurity Strategy (NCS) and NCS Implementation Plan attempt to reshape the laws governing software liability. Both proposals rely on creating a “standard of care” and a “safe harbor” against liability. This Essay explains both terms and their potential roles in a liability system that can bolster software security. Properly crafted standard of care rules and safe harbors have the potential to introduce more predictability and reliability into the litigation system while promoting better practices for achieving software security. Taken together, they could encourage adherence to quality-promoting practices and processes, making software more resilient and more secure.

Crusto on the SFFA Decisions

Mitchell F. Crusto (Loyola University New Orleans College of Law) has posted Equality, Morality, & Religious Liberty (77 SMU L. REV. F. 219 (2024)) on SSRN. Here is the abstract:

On June 29, 2023, the Supreme Court ruled that the use of a specific race conscious "tool" in the admission decisions of public and private colleges to achieve diversity is unconstitutional. However, in his nuanced opinion, Chief Justice John Roberts seemed to renew the Court's commitment to the anti-discrimination vision of the Civil Rights Act of 1964 and its progeny. Furthermore, the Court's decision provided the possibility of an exception for its stated restriction, that is, for military service academies. Nonetheless, the Court’s ban on a race-conscious tool is expected to have a substantial, negative effect on the application and enrollment of students who are African-Americans, their pathways to graduate and professional schools, and their employment opportunities, resulting in what I coin as a Black brain drain.” In response to the decision, the U.S. Department of Education has reiterated the pro-diversity vision of the federal laws and has instructed schools on how to minimize the Court’s projected negative impact on the enrollment of racial minorities of color.

Bernick on "Punish Treason, Reward Loyalty" by Graber

Evan D. Bernick (Northern Illinois University - College of Law) has posted Against Constitutional Iconoclasm on SSRN. Here is the abstract:

Mark Graber's "Punish Treason, Reward Loyalty" (PTRL) is a compelling work of constitutional iconoclasm, calculated to discourage the civic veneration which the Fourteenth Amendment to the U.S. Constitution has long received. This article is in roughly equal parts a review of Graber's book and a reflection upon normative questions regarding constitutional power which PTRL raises but does not address.

Graber contends that the Fourteenth Amendment was primarily designed by its Republican Framers to entrench Republican power, not to establish racial equality. The Fourteenth Amendment’s history, language, and design reflects that racial equality was but one of many things that Republicans cared about. And Republicans sacrificed racial equality to what they regarded as more pressing constitutional priorities.

I advance three criticisms. First, Graber only briefly engages Fourteenth Amendment scholarship which explores the meaning of the Amendment’s language, and his strident claims about it put him well ahead of his evidence. Second, the most arresting claim in PTRL is that the value of Black rights was for most of the Fourteenth Amendment’s Framers contingent upon their utility to “white interests.” But Graber doesn’t specify the nature of those interests, and the evidence which he presents is equivocal. Third and finally, Graber’s elite-centered approach to Republican constitutionalism neglects constitutional power which nonelites—particularly Black nonelites—built and wielded in spite of unjust exclusions.

I conclude with an extended reflection upon the normative dimensions of constitutional power, drawing upon the work of two of the boldest iconoclasts in human history: Benedict Spinoza and W.E.B. Du Bois. Both saw a world of difference between exercising democratic power with others in mutually beneficial ways and exerting dominating power over others at others' expense. Both sought to build the former and destroy the latter. To that end, both deployed narratives about the rise and fall of democratic constitutions in order to engage and inspire readers. Graber’s reluctance to get normative doesn’t cause him to miss the constitutional plot, but there are more stories to tell.

Highly recommended. Download it while it's hot!

Dickinson on Percolation and Federalization of State Constitutional Law

Gerald S. Dickinson (University of Pittsburgh - School of Law) has posted Revisiting Rucho’s Dissent: Percolation and Federalization (New York University Law Review, forthcoming 2025) on SSRN. Here is the abstract:

It has been five years since the U.S. Supreme Court’s ruling in Rucho v. Common Cause closed the door on federal claims challenging partisan gerrymandering, declaring them nonjusticiable political questions. Scholarly literature, since then, has focused primarily on where the Court went wrong in abdicating its responsibility and, to a lesser extent, how the Court got Rucho right. However, an under-addressed feature of Rucho is what Justice Elena Kagan explicitly and implicitly stated in her dissent; that is, the role of judicial federalism before and after Rucho and the influence of state courts in developing partisan gerrymandering doctrine as a matter of state constitutional law.

Justice Kagan’s dissent explicitly reminded the majority that if the state courts were capable of crafting appropriate standards to address partisan gerrymandering, so too was the Court. The problem, of course, was that the number of state court rulings addressing partisan gerrymandering at the time were in short supply. Implicitly, Justice Kagan then suggested that the Court could and should have consulted, borrowed, and adopted the state versions of neutral and objective standards as a source to guide the Court towards crafting a workable federal version. She, however, failed to identify or reference prior instances when the Court looked to the state courts to educate federal constitutional law. This Essay draws attention to how Justice Kagan’s dissent should be understood as foundational support for both the process of percolation and practice of federalization.

The percolation of state constitutional doctrines on partisan gerrymandering offers the Court a rich source of doctrine that will clarify the neutral and objective principles necessary to effectively adjudicate such sensitive political questions in the future. As such, the Court will be positioned to federalize those state doctrines, if it chooses to do so, in order to inform, guide, and support the creation of a federal partisan gerrymandering jurisprudence.

Highly recommended!

Cook on Compassionless Plea Bargaining

Julian A. Cook (University of Florida Levin College of Law) has posted Compassionless Plea Bargaining (113 Georgetown Law Journal Online, no. 1, 2024) on SSRN. Here is the abstract:

Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure the validity of a defendant's change of plea decision. Rather than engage in colloquies that are sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.

While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions, comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing. Compassionless Plea Bargaining seeks to fill this gap with its focus on a recent controversy that threatened to engulf the Biden Administration's Department of Justice into an unfortunate—and arguably embarrassing—controversy.

In December 2018, President Donald Trump signed into law the First Step Act. Designed primarily to address the nation's mass incarceration crisis, one of its more overlooked features was a provision that addressed sentencing modification. Commonly referred to as compassionate release, the Act sought to ease the ability of defendants to obtain a modification of their sentence in the event of an extraordinary life circumstance. During the COVID-19 pandemic, as the virus spread rapidly through correctional facilities, compassionate release requests predictably skyrocketed—and so did the workload of federal prosecutors tasked to respond to these motions. As a result, many U.S. Attorney's Offices included provisions in plea agreements requiring defendants to forgo their compassionate release rights under the Act in exchange for the concessions offered by the government. A brewing controversy ensued, with critics, including the National Association of Criminal Defense Lawyers, arguing that the government was leveraging its substantial negotiating power, and defendants were often agreeing to such waivers in the absence of a full awareness of the attendant consequences. In response, Attorney General Merrick Garland discontinued the practice in March 2022. However, the reprieve is likely to be short-lived, as future attorneys general will almost certainly resuscitate the practice.

The byproducts of a guilty plea are varied, deeply consequential, and, as evidenced in the compassionate release context, can even be fatal. This Article explains why federal change of plea hearings too often fail to adequately assess the knowledge and voluntariness underlying a defendant's guilty plea and offers a proposal for reform.

Attia on the Judicialization of Climate Change

Islam Attia (Graduate Institute of International and Development Studies (IHEID) - Department of International Law; London School of Economics - Law School; Indiana University Robert H. McKinney School of Law) has posted The Judicialization of Climate Change: The Technique and Its Proliferation on SSRN. Here is the abstract:

On 29 March 2023, the UN General Assembly (UNGA) requested an advisory opinion from the International Court of Justice (ICJ) on the legal consequences of climate change under several regimes including international human rights law. Due to the failure of political processes, climate change is currently subject to “judicialization” by domestic, regional, and international courts, majorly through “rights-based” litigation. Judicialization by way of evolutive interpretation of human rights is of high potential as it could be juris-generative and law-creating. While these climate proceedings are mostly examined in isolation, this paper seeks to encourage different types of lawyers (international/ domestic, generalists/specialists, practitioners/theorists, etc.) to speak and complement each other through common analytical frameworks. Accordingly, this paper addresses this phenomenon from the lens of “judicialization,” which captures the commonality of all these climate proceedings. The paper reveals how climate change is subject to judicialization, the technique used by courts, its proliferation, in addition to the challenges and limits of this process.

Highly recommended.

Larry Alexander on Fred Schauer

Larry Alexander has asked that I post this tribute to Fred Schauer:

The news of his terrible physical condition conveyed to me in an email by Fred Schauer himself just a few days before he died brought me extreme sadness but also wonderful memories. Although Fred was camped in the eastern U.S. and at highly prestigious schools (e.g., Michigan, Harvard, Virginia), while I was and still am in San Diego, California, at a less prestigious school, he and I managed to create and maintain a wonderful relationship. That relationship was not only an intellectual one, though it was that. (He was on the liberal side of the political spectrum, while I have been on the conservative side for at least 25 years; but in reality, we had pretty similar political views.) We co-authored a half-dozen law review articles, including one of the most-cited contributions to the Harvard Law Review. But our relationship went far beyond a merely intellectual one. We played golf together whenever we could. And more significantly, we traveled together. My wife Elaine and I joined Fred and his then-wife Virginia for trips in South America, Africa, Australia, and Israel. What a wonderful, multi-faceted relationship it was. And though I realized that it would have to end some day, that day came much too soon. The world has lost a first-class legal scholar. I have lost that but much more.

Giving Thanks: Fred Schauer

It is a Legal Theory Blog tradition for me to express my thanks and gratitude on Thanksgiving Day.  This year my choice was especially clear.  When Fred Schauer passed away earlier this year, the outpouring of grief and gratitude from Fred's colleagues, students, and friends was overwhelming.

My relationship with Fred goes back almost 40 years to the time that I was a brand new law professor and had just published my first article, On the Indeterminacy Crisis: Critiquing Critcal Dogma.  As one did, I sent reprints out.  It was a real thrill to receive handwritten letters from Ronald Dworkin, Charles Fried (then Solicitor General), and many others.

One of the letters came from Fred Schauer, who was then at the University of Michigan School of Law. By the time I had gotten Fred's letter, I was a  bit full of myself. The article had gotten quite a lot of attention and praise. I vividly remember Duncan Kennedy calling me to complain about the paper's influence on perceptions of the critical legal studies movement. Fred's letter was unique, reflecting his fundamental goodness, honesty, and generosity. Fred was broadly sympathetic to my argument against the indeterminacy thesis, which at the time was seen as a central claim by critical scholars.  But Fred's letter was also critical and for that reason helpful in a way that stood out from the rest of the feedback that I received. When Fred commented that my use of a quote from Wittgenstein was "philosophically pretentious," the criticism stung but it also reflected Fred's real interest in helping a younger scholar find his way.

Over the years, I attended many conferences and events at which Fred was present. Conversations with Fred were always a joy. And I always learned from Fred--especially when we disagreed. Recently, Fred and I were colleagues at the University of Virginia.  It was always rewarding to participate in workshops when Fred was present; his questions were always deep and constructive. Every conversation with Fred about legal theory left a mark: he made me a better scholar and thinker in more ways than I can count.

Fred left behind a prodigious body of work. He has been cited many many thousands of times. Because he worked on the fundamental problems of legal theory, reading Fred will benefit every legal thinker, even if you are not yourself a theorist.  Here are a few books, I especially recommend:

Thinking Like a Lawyer: A New Introduction to Legal Reasoning This book is aimed at law students, but I think legal scholars will benefit from it in profound ways.

The Proof: Uses of Evidence in Law, Politics, and Everything Else Of special interest to evidence scholars, but every legal scholar will learn from Fred's deep thinking about the nature of evidence. This was Fred's last published book and one of his greatest accomplishments.

Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life In my opinion, Fred's most important book. A classic. If you only read one book by Fred, this should be it.

Free Speech: A Philosophical Enquiry Out of print. I read this book as a law student, when writing a paper on Habermas's theory of communicative action and the freedom of expression. Fred's book profoundly influenced the way that I approach normative legal theory. Every article that I write reflects the lessons I learned from this book by Fred.

Thank you, Fred Schauer. I miss you. I owe you. You will always be with me.