Legal Theory Blog

Moncrieff on Constitutional Technocracy

Abigail R. Moncrieff (Cleveland State University - Cleveland State University College of Law) has posted Constitutional Technocracy: Volume I on SSRN. Here is the abstract:

Small-d democracy—defined as governance according to the will of the people—is thought to go along with a standard set of big-D Democratic institutions: representative legislatures, regular elections, egalitarian norms, and strong individual rights. Likewise, small-t technocracy—defined as governance according to science—is currently thought to go along with a particular set of big-T Technocratic institutions: centralized governance, expert administration, welfarist redistribution, and, in many existing Technocracies, weak (or no) individual rights. My forthcoming book, Constitutional Technocracy, argues that this set of supposedly Technocratic institutions is importantly anti-scientific and thus anti-technocratic. Centralized administration is not how you science! Instead, science is a diffuse and iterative process of perpetual experimentation. We believe in relativity not because Albert Einstein was the Tzar of Science in 1915 but rather because countless independent thinkers have tested relativity in the century since Einstein proposed it and have found that it works. Translated into human governance, there is no reason to abandon—and there are many reasons to retain—the diffuse, iterative, and dialectical methods that are core to scientific discovery. To be genuinely scientific, technocracy should resemble liberal democracy far more than it resembles totalitarian bureaucracy. This manuscript contains the first half of the book, which lays the deep historical, philosophical, and jurisprudential groundwork for a wholesale reimagining of American constitutionalism according to the precepts of constitutional technocracy. The second half will modernize the theory and then argue that the American constitutional order already functions much as a constitutional technocracy should. (The full book will be published by Cambridge University Press just as soon as it's written.)

Wieboldt on "Conservative Thought and American Constitutionalism Since the New Deal" by O’Neill

Dennis J. Wieboldt III (University of Notre Dame) has posted Conservative Constitutionalism Reconsidered (Journal of American Constitutional History 2 (2024)) on SSRN. Here is the abstract:

Few forces are more important to the study of American conservatism than the law. As Steven Teles, Ann Southworth, Amanda Hollis-Brusky, and other political scientists have illustrated, twentieth-century conservatives successfully built an institutional network that enabled conservative ideas about the law to permeate both scholarly thinking and judicial decision-making. What Teles, Southworth, and Hollis-Brusky have uniformly overlooked, however, is one of the most significant philosophical influences on conservative legal thought in the United States: natural law. Indeed, with the exception of Ken Kersch’s Conservatives and the Constitution, scholarly treatments of conservatism from the perspective of American Political Development have generally failed to explore natural law’s place in conservative legal thought, even as they have advanced our understanding of conservatism by examining the internal (and especially operational) dynamics of the conservative legal movement. While R. H. Helmholz and Stuart Banner have recently demonstrated natural law’s importance to the eighteenth- and nineteenth-century American legal profession, neither they nor other historians have devoted much sustained attention to natural law’s place in the twentieth-century Untied States. With the publication of Conservative Thought and American Constitutionalism Since the New Deal, Johnathan O’Neill has made a welcome entry into this historiographical lacuna.

 

Bernick on "Memory and Authority" by Balkin

Evan D. Bernick (Northern Illinois University - College of Law) has posted Constitutions of Ice and Fire (University of Pennsylvania Law Review, forthcoming) on SSRN. Here is the abstract:

Constitutional theory studies the birth and death of normative universes. Constitutions originate in “hot” universes, from fiery constituent power which forges institutions and norms that come to be seen as fixed and unchanging. Even in the “cooled down” universe, constituent heat is capable of transfiguring, transforming, and even consuming constituted power. No constitution which derives its legitimacy from popular sovereignty can long survive the estrangement of the living from what is perceived as a cold, dead legal order.

Jack Balkin’s Memory and Authority tries to navigate between fire and ice, fixity and flux. Since Balkin’s conversion to originalism, he has been a steadfast defender of faith in the basic legitimacy of the Constitution of the United States and a keen critic of interpretive approaches which tend to undermine its legitimacy. His Constitution is a framework which has some fixed, “hard-wired” features but which also provides considerable space for politics. Popular multitudes in the present can join multitudes past in an intergenerational democratic project committed to the realization of enduring constitutional principles. Through faithful construction, an imperfect Constitution borne of sin can be redeemed and become our law.

Memory and Authority maintains that originalist arguments play an important role in this democratic project. Balkin considers them to be a particularly effective means of harnessing the power of cultural memory. Balkin counsels everyone to use them. He specifically urges left-liberals to set aside their misgivings about a mode of argument that is primarily deployed by political conservatives, both for the sake of achieving left-liberal political goals and for the sake of democracy.

I contend that Balkin’s map of the U.S. constitutional universe is neither cold nor hot enough to be complete or convincing. It’s not cold enough because the framework Constitution and durable political-economic structures which it presupposes and perpetuates skew constitutional decisionmaking in democratically disempowering ways. It’s not hot enough because Balkin neglects the ways in which the framework has been shaped—for good and ill—by fiery constitutional faiths. For all the space that he seems to leave for flux, Balkin takes too much fixity for granted.

To illuminate the strengths and limitations of Balkin’s constitutional theory, I put his work in conversation with the anti-essentialist cosmological theory of Roberto Mangabeira Unger, among the founders of a critical legal studies movement to which Balkin was in his early career a major contributor. I also describe the constitutionalism through which Native peoples have built power in the United States, notwithstanding a colonialist Constitution. This constitutionalism is animated by faith, but that faith looks little like Balkin’s. And it illustrates why arguing about history can be a dangerous strategy for peoples marginalized by the framework Constitution.

Highly recommended. 

Reid & Wilson Standing to Sue for Data Breach

Amanda Reid (UNC Chapel Hill) & Noelle Wilson have posted Intangible Harms, Tangible Consequences: Analyzing the Impact of TransUnion on Standing to Sue for Data Breach on SSRN. Here is the abstract:

Scholars and practitioners predicted that the 2021 Supreme Court case, TransUnion v. Ramierz, would essentially nullify the private right of action-a key enforcement mechanism for many consumer privacy laws. This project analyzes federal courts (N=96) interpreting TransUnion in data breach contexts. Our contribution is twofold: (1) identifying tests courts employ to determine whether data breach plaintiffs have alleged sufficient 'injury in fact' to establish Article III standing, and (2) highlighting the areas of inconsistency in how courts employ those tests. Our analysis serves to ground the scholarly debate about the implications of TransUnion in holding breached entities accountable. Despite the fears expressed by privacy advocates, our results indicate that TransUnion has not effectively nullified the private right of action. Our findings show 60% of plaintiffs (n=58) successfully established injury in fact based on intangible data breach harms. Nevertheless, we found inconsistency among the lower courts; scholars and practitioners' concerns that data breach plaintiffs' access to federal courts post-TransUnion may depend on geography are not unfounded.

Jiang & Wu on Shanghai Xinchuanghua Cultural Development Co., Ltd. v. AI Company

Fen Jiang (Ningbo University) & Hong Wu (NingboTech University) have posted The World’s First Case Involving a Generative Artificial Intelligence: Shanghai Xinchuanghua Cultural Development Co Ltd v AI Company (Pseudonym) (Queen Mary Journal of Intellectual Property, volume 14, issue 4, 2024) on SSRN. Here is the abstract:

Shanghai Xinchuanghua Cultural Development Co., Ltd. v. AI Company (pseudonym) is the first in the world to render a judgement on whether a generative artificial intelligence service provider should bear copyright liability for the infringement of other people's prior works by its generated content. The court ruled on the types of copyright exclusive rights involved.

Lee on Constitutional Law in Singapore

Jack Tsen-Ta Lee (International Scientific Committee on Legal, Administrative and Financial Issues (ICLAFI), International Council on Monuments and Sites (ICOMOS)) has posted Singapore (David S Law, Holning Lau and Alex Schwartz, The Oxford Handbook of Constitutional Law in Asia (Oxford, Oxfordshire: Oxford University Press, 2024)) on SSRN. Here is the abstract:

Barring some radical change in policy or party, it seems likely that the executive and legislative branches of government will continue to strongly influence the development of Singaporean constitutional law, including the very structure of government, given the ease with which Parliament can amend the constitution and enact legislation. Where judicial review by the courts is concerned, the predominant trend appears to be one of deference to the government’s policy choices, while retaining a measure of judicial latitude for action in exceptional circumstances. Whether the courts will be prepared to scrutinize the acts of the political branches more strictly remains to be seen.

Bosire on Judicial Independence in Africa

Conrad Mugoya Bosire (University of the Western Cape) has posted Judicial Financial Independence in Africa: A Comparative Introduction on SSRN. Here is the abstract:

While the general principle of judicial independence has been a subject of scholarly inquiry and policy attention over many years, the subject of judicial financial independence, and specifically, the mechanics of it has not received equal attention. This book explores the frameworks, policies, and practices of financing and resourcing judiciaries in Africa, and the relation of the country practices to the pillars of judicial independence. Using the eleven country case studies covered in the book: Kenya, Zimbabwe, South Africa, Uganda, Tanzania, Malawi, Botswana, Zambia, Nigeria, Ghana, and Namibia, the book explores different aspects of judicial financial independence. These include: recognition and entrenchment of judicial financial independence in normative frameworks, the process of determination resource needs for judiciaries, approval of budgets, control and management of resources allocated to the judiciary, and accountability and reporting on the utilization of resources allocated to the judiciary. The chapters in the book demonstrate the complex relationship between financial independence and effective administration of justice. The introductory and concluding sections of the book draw common and unique trends in the eleven countries in the themes identified. These include: the different approaches to budgeting, control and management of resources and the institutional mechanisms for funding judiciaries. This is followed by and concluding observations on the specific themes. The main objective of the book is to stimulate discussion on how to enhance the financial independence and autonomy of courts and judiciaries in the region. Through this publication, we hope to spark a broader conversation that includes not only the judiciary in one country, but also other judiciaries across the continent, policymakers, and stakeholders committed to strengthening the rule of law in Africa.

DeVito on Originalism

Scott DeVito (Jacksonville University College of Law) has posted George Washington's Teeth, Wittgenstein, and Two Gruesome Problems for Originalism on SSRN. Here is the abstract:

With the conservative turn of the U.S. Supreme Court, originalism has become ascendant. This rise to preeminence should trouble the legal community because originalism is grounded on a naive understanding of the interpretative process. Once we wash away this naivety and delve more deeply into legislative interpretation, we see that originalism fails in three ways. First, there is recent empirical evidence that general meaning is rare and, as such, the original meaning required by the theory is unlikely to have existed. Second, originalism fails to take into account the Problem of Induction-that making generalized inferences from a limited dataset is inherently uncertain. As a result, there are an infinite number of interpretations of a term or phrase that are all consistent with the earlier texts relied upon but inconsistent with each other. Third, the originalist assumes that we can pick between these conflicting interpretations by understanding the viewpoint of the drafters. But, as a review of the historical record demonstrates, that is not possible due to the enormous gulf between the ethical values and scientific knowledge of ourselves and our predecessors. Thus, if the courts are to pick among the possible interpretations, they can only do so if they do what originalism forbids-use the court's contemporary values. Which is a very self-contradictory thing to do.

Kessler on the Origins of the "Rule of Law"

Jeremy Kessler (Columbia University - Law School) has posted The Origins of "The Rule of Law" (Law & Contemporary Problems, Volume 87, 2025) on SSRN. HEre is the abstract:

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on.

When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists.

In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610?

This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

Highly recommended.

Craighead on the Dormant Commerce Clause and the 21st Amendment

Burke Craighead (Harvard University - Harvard Law School) has posted On a Collision Course: The Twenty-First Amendment, the Dormant Commerce Clause, and Physical Presence Laws on SSRN. Here is the abstract:

The Supreme Court's most recent Twenty-First Amendment case, Tennesse Wine & Spirit Retailers Ass'n v. Thomas, has cast doubt on one, longstanding form of alcohol regulation: physical presence laws. These laws, which require a licensee to maintain a physical location within the state, have a historical pedigree dating to the ratification of the Twenty-First Amendment's section 2, which prohibits the importation of alcohol into a state in violation of the state's laws. However, the Court has increasingly applied the dormant commerce clause to alcohol regulations, narrowing the force of section 2. This Article is the first to raise the alarm bells that the dormant commerce clause is on a collision course with section 2 of the Twenty-First Amendment in the realm of physical presence laws. To that end, this Article examines how the Court got here—from starting with a broad reading of section 2 to eventually cabining it to the most limited of circumstances in the name of the dormant commerce clause. It then offers a number of possible ways the collision could occur (and could be avoided). Despite today's increasingly originalist Court, the original meaning of section 2 has been lost. This Article offers a way to reclaim it in the context of physical presence laws.

Recommended.