Legal Theory Blog

Download of the Week: "History's Identity Crisis" by Larsen

The Download of the Week is History's Identity Crisis by Alli Orr Larsen. Here is the abstract:

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning – weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about – conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding – generalized and closer to policy – such that we want appellate judges to make the calls after studying in the law library or digesting dozens of amicus briefs? This matters because each alternative identity carries significant practical litigation consequences, and – because of those consequences -- the players are motivated to manipulate the different labels in strategic ways.

I call for some nuance and “bottom line thinking:” if what really matters is who makes the decision and under what conditions, then we should ask that question directly and specifically rather than getting hung up in definitions and labels. This article assumes a good-faith judge confronting a history-based test in the Second Amendment context, and then offers a way to help: by detangling this identity crisis, exploring the implications of each alternative identity, and then offering preliminary thoughts on a possible path forward.

Highly recommended.

Download of the Week: Excerpts from People v. The Court by Sloss

The Download of the Week is People v. The Court: The Next Revolution in Constitutional Law by David L. Sloss. Here is the abstract:

Included here are excerpts from my forthcoming book. The book presents a normative theory of judicial review that builds on John Hart Ely’s theory. Current constitutional doctrine is at odds with core constitutional values. We divide Con Law into rights issues and structural issues. Structural Con Law focuses on the division of power among government actors. That framing omits a key structural feature of the Constitution: the division of power between We the People and our government. Constitutional rights doctrine focuses on negative, individual rights. Accordingly, constitutional doctrine ignores one crucial right: the affirmative, collective right of We the People to exercise control over our government.

My theory divides constitutional issues into three baskets: rights, structure, and democratic self-government. The theory relies on a distinction between strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override.

Based on the distinction among three types of judicial review, and the division of constitutional issues into three baskets, the book defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. For example, courts should apply strong judicial review to ban partisan gerrymandering. The goal should be to correct defects in the electoral process so that elected legislators represent the entire political community, rather than serving factional interests.

Second, courts should apply weak judicial review for most individual rights claims. Courts can protect individual rights by applying federal statutes and international human rights treaties—instead of applying the Constitution—as the primary source of protection for individual rights. In this way, courts can provide robust protection for rights while still preserving an option for legislative override if Congress disagrees with the Court’s resolution of a particular issue. The option of legislative override is essential to ensure that our elected representatives—not unelected, unaccountable judges—have the last word on contested rights issues.

Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. The Court’s modern federalism jurisprudence does not actually promote the ostensible goal of protecting state autonomy. Instead, the Court’s federalism doctrine transfers federal lawmaking authority from Congress to the Supreme Court, in violation of separation-of-powers principles. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment, as exemplified by McDonald and Bruen.

Clearly, the current Supreme Court will not be receptive to these arguments. The final chapter presents a roadmap for revolutionary change in which We the People mobilize to transform our government, and Congress and the Supreme Court collaborate to restore the vitality of democratic self-government.

Highly recommended.  A much needed updating of Ely's classic work.

Download of the Week: "Disclosures, Defaults, and Mandatory Rules" by Zamir

The Download of the Week is Disclosures, Defaults, and Mandatory Rules: Conceptions and Misconceptions by Eyal Zamir. Here is the abstract:

This contribution to the Oxford Handbook of Regulatory Contract Law (Alexander Hellgardt & Yeşim Atamer eds., forthcoming) begins by analyzing the basic characteristics of the three most common modes of regulating contracts: disclosure duties, substantive default rules, and substantive mandatory rules. It then argues that there are no clear boundaries between these modes of regulation. The chapter further challenges the conventional understanding of the distinctive features of each measure—such as the notions that only mandates restrict the parties' freedom, that only disclosures facilitate deliberative decision-making by the contracting parties, and that mandates, unlike disclosures and defaults, are "one-size-fits-all" measures. Finally, it contests the assumption of a one-to-one correspondence between the underlying goals of regulation and the means of achieving them. In reality, all three measures—disclosures, defaults, and mandates—can be used to address information problems, reduce transaction costs, handle externalities, and so forth.

Highly recommended.

Download of the Week: "Contract as Vow or Oath" by Leib

The Download of the Week is  Contract as Vow or Oath by Ethan J. Leib. Here is the abstract:

Many scholars and judges attempt to harmonize legal practices of contracting with the social practice of promising in ordinary life. This article explores an alternative genealogy of contract in traditional social practices that track many of contract's core norms: taking vows and oaths. Without denying that promissory morality infiltrates modern contract, contract-as-vow-or-oath can expose by way of a supplementary account why some contract rules work as they do and can take some pressure off of a more unitary promissory theory in justifying, explicating, and reforming contract law.

Highly recommended.

Download of the Week: "Constitutional Federalism and the Nature of the Union" by Bellia & Clark

The Download of the Week is Constitutional Federalism and the Nature of the Union by Anthony J. Bellia Jr. & Bradford R. Clark (. Here is the abstract:

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in North America became “Free and Independent States” following the Declaration of Independence—a status that entitled them to all of the rights and powers of every other sovereign state under the law of nations. Under that law, states could alienate their sovereign rights and powers in a binding legal instrument, but only if the instrument met certain requirements. As Vattel explained, and Hamilton echoed in The Federalist, all instruments used to alienate such rights and powers were subject to an important background rule designed to avoid misunderstandings and war: a legal instrument could alienate sovereign rights and powers only if it did so in clear and express terms or by unavoidable implication. Instruments that failed this test left sovereign rights and powers with the original holder. Hamilton explained that because the Constitution involved a “division of the sovereign power,” this rule was “clearly admitted by the whole tenor of the instrument.” Thus, as this Article and our prior work reveal, the proper question in federalism cases is not whether the Constitution affirmatively grants the States sovereign rights and powers (it does not), but whether it includes text sufficient to alienate the rights and powers they enjoyed when they became “Free and Independent States.” From this perspective, the Court’s leading federalism doctrines have a firm basis in the original meaning of the constitutional text—understood in its full legal and historical context. In defending this thesis, the Article responds to several scholars who have recently challenged our approach. Their critiques do not withstand scrutiny and are refuted by substantial evidence found not only in America’s pre-constitutional founding documents and background law, but also in The Federalist Papers, the ratification debates, and significant early opinions of the Supreme Court.

Highly recommended.

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!

Download of the Week: "Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court" by Tani

The Download of the Week is The Supreme Court 2023 Term - Foreword: Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court by Karen Tani. Here is the abstract:

The Foreword to the Harvard Law Review’s annual Supreme Court issue has become a genre unto itself. Often, it has been a forum for authors to showcase big ideas about law, courts, justice, and foundational constitutional commitments. Supreme Court decisions might (rightfully) recede into the background. This Foreword is a foreword in the more traditional sense of the word. It takes as its main “text” the work of the 2023 Term—including major controversies over presidential power, firearms regulation, reproductive rights, and the administrative state. To that “text,” this Foreword brings my particular skills, sensibilities, and knowledge: my training as a historian; my appreciation for the humanities, more broadly; and my research in civil rights law and enforcement, constitutional law, administrative agencies, social welfare law, disability, and inequality. The final product is a partial overview of the Term and an introductory commentary, which I hope will provide clarity, inspire curiosity, and spur deeper reflection.

Reading across the term, I emphasize three aspects of the Supreme Court’s power that merit attention and further analysis. First, drawing on a rich body of scholarship on the Court’s certiorari process, and pairing this with insights from history and archival studies, I discuss the Court’s influence over the set of questions, litigants, and factual scenarios that consume its time and resources (“curation”). Second, building on the work of Robert Cover and many others, I document the Court’s use of its opinions to tell stories, both about the litigants and about itself (“narration”). Third, I explore the complex set of forces (implicating the Court, but also other institutions) by which particular people and problems can disappear from the Supreme Court’s docket over time (“erasure”)—with consequences that might range across subject matters. Cases involving beneficiaries of the welfare state are my main example here, but there are surely others. Taken together, these three uses of power—curation, narration, and erasure—can help us better understand the current Court, as well as its past and future iterations. Perhaps most importantly, they summon into view the distributions (of attention, resources, opportunities, and more) that flow in the wake of the Court’s choices and prime us to probe and contest what we see.

Highly recommended. Download it while it's hot!

Download of the Week: "Artificial Intelligence and Constitutional Interpretation" by Coan & Surden

The Download of the Week is Artificial Intelligence and Constitutional Interpretation by Andrew Coan & Harry Surden . Here is the abstract:

This Article examines the potential use of large language models (LLMs) like ChatGPT in constitutional interpretation. LLMs are extremely powerful tools, with significant potential to improve the quality and efficiency of constitutional analysis. But their outputs are highly sensitive to variations in prompts and counterarguments, illustrating the importance of human framing choices. As a result, using LLMs for constitutional interpretation implicates substantially the same theoretical issues that confront human interpreters. Two key implications emerge: First, it is crucial to attend carefully to particular use cases and institutional contexts. Relatedly, judges and lawyers must develop "AI literacy" to use LLMs responsibly. Second, there is no avoiding the burdens of judgment. For any given task, LLMs may be better or worse than humans, but the choice of whether and how to use them is itself a judgment requiring normative justification.

Highly recommended!  Download it while it's hot!

Download of the Week: "Super-Canons" by Eskridge

The Download of the Week is SUPER-CANONS by William N. Eskridge. Here is the abstract:

Since 2017, the Roberts Court has created a new public law regime justified by updated constitutional doctrines and new statutory clear statement rules. The new regime is paring back the authority of expert agencies to implement their delegated responsibilities, reducing the power of Congress to make long-term delegations while enhancing the power of the states and the President (and the Court), protecting and encouraging expression of religious values in public and commercial fora, limiting women’s rights to reproductive choice, and reducing the capacity of state and private institutions to inculcate diversity and inclusion. This Article maintains that the new regime is driven not entirely by constitutional and statutory precedents, nor entirely by a neutral reading of legal texts and original public meaning. Relevant legal materials are filtered through political philosophies valued by the majority Justices. Inspired by Friedrich von Hayek, Edmund Burke, and Patrick Henry, the Roberts Court’s ideal America is not an administrative state dictating enlightened plans for a structured market economy, a woke pluralism, and a society of rights-entitled citizens.

Can the Roberts Court’s vision and doctrinal regime change be defended? The political philosophies reflected in the Super-Canons are strongly related to the “Old Whig” tradition that forms an undeniable foundation of American constitutional history. And it is a vision that almost half the country seems to accept—but more than half the country has rejected. Also, the Super-Canons represent a challenge to the ability of the United States, and the world community, to confront the existential challenges facing us in the next thirty years. Finally, the Court’s monarchical tilt in its presidential powers jurisprudence is at war with the philosophies of the Super-Canons and with the rule of law itself.

Highly recommended.  Download it while it's hot!

Download of the Week: "The Constraining Effect of "History and Tradition": A Test" by Brown, Lee, & Gulati

The Download of the Week is The Constraining Effect of "History and Tradition": A Test by Rebecca L. Brown, Lee Epstein, & Mitu Gulati. Here is the abstract:

The U.S. Supreme Court’s embrace of originalism, and particularly the “history and tradition” method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. Two Second Amendment cases (Heller in 2008 and Bruen in 2022), where the Court switched methodologies, provide a vehicle to test the debated question. Analyzing data from federal court decisions on gun rights spanning 2000 to 2023, we find that the switch from a means-ends to a history-tradition methodology corresponds with an increase in judicial discretion. Personal factors like partisan identity, gender, race and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime. The results challenge the notion that a historical approach provides a neutral constraint on judicial discretion.

Highly recommended.