Legal Theory Blog

Download of the Week: "Congressional Outsiders and Textualist Non Sequitur" by Tsoi

The Download of the Week is Congressional Outsiders and Textualist Non Sequitur by Chun Hin Jeffrey Tsoi. Here is the abstract:

In Congressional Insiders and Outsiders, Amy Coney Barrett distinguished between “congressional insider” approaches like process-based theories (i.e., drawing interpretive resources from Congress’s procedures and practices) and “congressional outsider” approaches like textualism (i.e., drawing interpretive resources exclusively from ordinary meaning of the statutory text). According to Barrett, textualists would find an “outsider” approach normatively superior because courts should be faithful agents of the people, who do not usually have inside knowledge of Congress. This embodies a distinctive type of defense for textualism, which I call “outsider textualism,” based not on statutory text as the compromise drawn in Congress, but instead on a concern for persons subject to the law. I argue that this textualist argument nevertheless fails because it made two logical leaps: One, by assuming an “outsider” approach always equals faithful agency to the people; Two, by assuming that an “outsider” approach—if it does equal faithful agency to the people—could justify textualism. More specifically, the outsider perspective does not generally follow from “faithful agency” to the people because, for example, the people could legitimately expect administrative agencies to comply with a legislative command that is not accessible to an outsider; and even if the outsider perspective is justified in contexts such as criminal law, it does not follow that textualist understanding is fairly expected of an outsider criminal defendant. In other words, outsider textualism illicitly relies on the appeal of “fair notice” canons as a springboard for textualism in general. Instead of blanket justifying textualism, what faithful agency to the people requires might inevitably be a substantive, value-laden question dependent on our conceptions of justice.

Highly recommended.

Download of the Week: "Bootstrapped: A (Qualified) Defense of Practice-Based Constitutional Argument" by Diamond

The Download of the Week is Bootstrapped: A (Qualified) Defense of Practice-Based Constitutional Argument by Alma Diamond. Here is the abstract:

We have our Constitution in common, even if we share very little else. This, at least, is a core tenet of our constitutional order: that we share in a single framework of duties and entitlements despite our underlying moral, political, and philosophical differences. But is it really possible to occupy a shared legal world if we live in very different moral, political and philosophical worlds? This is the question raised by deeply consequential constitutional controversies in an increasingly polarized society. It is a question about the basis of, and justification for, constitutional law. Is our constitutional law ultimately a matter of moral evaluation or perhaps even of political expediency? If it is, do we have constitutional law in common with those with whom we disagree morally, or with whom we are politically misaligned?

These questions push us to confront deep and persistent jurisprudential debates about the possibility, and logic, of distinctively legal justification: justification that rests on its own bottom, which does not depend for its force on further moral truths. The most familiar jurisprudential account of such legal justification is H.L.A. Hart’s. For him, we have shared social frameworks that determine our constitutional law independently of moral considerations. Within constitutional discourse, a wide range of authors that have relied on Hart to put forward practice-based accounts of our constitutional law. The most prominent recent example is Baude and Sachs’s so-called “positive” argument for originalism, but the tradition is a longer and broader one. Practice-based constitutional arguments attempt to find shared social resources to make sense of our law precisely when our moral resources leave us divided. These arguments have been widely criticized on two fronts. First, they are criticized as jurisprudentially confused. Second, they are criticized for illicit bootstrapping: drawing normative conclusions from descriptive premises. As a result, many have concluded that practice-based constitutional arguments are best abandoned.

This Article intervenes at this crucial point in constitutional discourse to clarify the structure and force of practice-based constitutional arguments and to caution against their abandonment. I provide a detailed analysis of the jurisprudential view they rely on, and of the nature and validity of “legal bootstrapping”. And I draw attention to the important choices facing practice-based constitutional arguments: precisely where we draw the line around legal validity determines the value we ascribe to legal community. I argue for a mode of practice-based constitutional argument that conceives of legal validity in wider terms than Baude and Sachs, but narrower terms than those who would abandon practice-based constitutional arguments altogether. Practice-based constitutional arguments are important, especially in times of polarization. They should not be abandoned. But for precisely this reason, they should not be distorted in favor of preferred substantive outcomes or interpretive positions.

Highly recommended.  Download it while it's hot!

Download of the Week: "Dormant Commerce and Corporate Jurisdiction" by Sachs

The Download of the Week is Dormant Commerce and Corporate Jurisdiction by Stephen E. Sachs. Here is the abstract:

Since 1945, the Court has sought for substantive rules of personal jurisdiction in the depths of Fourteenth Amendment due process. Mallory v. Norfolk Southern Railway Co. returns “dormant commerce” doctrine to the field—a place it occupied for several decades in the twentieth century, before being swept away and largely forgotten after International Shoe.

This Article assesses the impact of dormant commerce’s return. Under today’s doctrines, plaintiffs like Robert Mallory may face an uphill battle; yet they also have some good arguments on their side. On original grounds, moreover, it’s far from clear that there is any dormant commerce doctrine, or that such a doctrine would have anything to say about the existence, powers, or internal affairs of state-created corporations in other states. At the Founding, states didn’t have to recognize the privileges of foreign corporations at all, so they could make consent to local jurisdiction a condition of those privileges’ local exercise.

By destroying the foundations of this earlier doctrine, the Supreme Court’s turn-of-the-century dormant commerce cases eventually led to the recentering of personal jurisdiction on due process instead—and on complex and contradictory jurisdictional rules, less concerned with enforcing the actual Fourteenth Amendment than with preserving the legacy of International Shoe. If our doctrines of personal jurisdiction aren’t going to make sense anyway, they may as well actually be law. Mallory doesn’t quite get us there, but at least it points us in the right direction.

Magnificent. Highly recommended. Download it while it's hot!

Download of the Week: "Judicial Review in Public and Private Governance" by Stein

Tomer Stein (University of Tennessee College of Law) has posted Judicial Review in Public and Private Governance (Washington University Law Review, Vol. 102, No. 2, (Forthcoming, 2024)) on SSRN.  Here is the abstract:

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited judicial deference to universities. In West Virginia v. EPA, the Court reduced deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court narrowed deference to boards of directors, proclaimed a new standard of judicial review, and then seemingly retracted it. Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and incoherence in the use and application of substantive standards of review. The resulting disarray is explicitly acknowledged by the very judges that formulate these standards of review—and those acknowledgments are evenly spread across the political map: Justice Sotomayor described constitutional standards of review as “perplexing;” Delaware’s Chancellor McCormick proclaimed that “the struggle is real” in response to a development in corporate standards of review; and Justice Scalia attested that constitutional law’s tiers of scrutiny are “no more scientific than their names suggest.”

This Article develops a comprehensive theory that remedies the uncertainty, unpredictability, and incoherence of the courts’ substantive standards of review. To that end, the Article advances a novel approach: it draws upon and synthesizes the lessons from judicial review carried out in both public and private governance contexts. While constitutional and administrative law, on the one hand, and corporate law, on the other, may appear to be far removed from each other, the role of judicial review in both is similar—it requires balancing among competing and overlapping sources of authority. The Article adopts this unified perspective to uncover and offer a remedy for the systemic shortcomings that plague our system of judicial review. Specifically, it shows that courts have created a haphazard conflation of standards of review, types of scrutiny, and kinds of deference. This conflation engendered doctrines that erroneously categorize standards of review on the basis of degree rather than kind. To fix this misclassification and the resulting incoherence, the Article looks under the hood of the substantive standards of review and provides a full conceptual and normative guide for the administration of claim-of-fact, scienter, and action scrutiny, and the corresponding epistemic, moral, and institutional deference. This Article also draws the distinction between independent and auxiliary standards of review and introduces the widespread, yet unacknowledged, use of scrutiny modifiers.

Highly recommended.

Download of the Week: "The Regulatory Tribune" by Jackson

The Download of the Week is The Regulatory Tribune: Presidential Representation in the Administrative State by Katharine Jackson.  Here is the abstract:

When it comes to grappling with the role of the American presidency within administration, scholarship presents us with two unpalatable choices. First, we can reconcile ourselves to a plebiscitary, imperial “unitary” president. As “an immediate and direct representative of the people,” he has every democratic right to shape agency agendas and agency values. The second choice presented cuts the President out of the regulatory picture entirely. Here, the choice is to extol administrative agencies as the sole delegates of Congress’s policymaking power. As steadfast emissaries of legislative intent, they should dedicate themselves to rational, deliberative decision-making. If he took his proper place, the President would assume the role of “mere clerkship.” This line of thought offers a capacious menu of reasons why the unitary, plebiscitary presidency is bad. But it doesn’t offer any alternative other than pretending that he doesn’t, or shouldn’t, exist at all.

The bitter taste of these two choices is familiar. The first risks a Schmittian nightmare, an executive that rules by nontransparent diktat. The second choice, sounding in a Whiggish register, risks a juristocratic nightmare as courts and technocrats camouflage the politics of their decisions behind the anodyne language of legal reasoning, expertise, and science. They evade whatever authority presidential elections lend to the nation’s chief officer and betray voters’ expectations that their votes should mean something. At the very least, when we pretend that the President doesn’t have a hand in forming agency policy, we allow his influence to grow under the fertile conditions of secrecy and inattention.

As legal scholars have well documented, neither the Administrative Procedure Act nor Constitutional text points to a clear choice between these two alternatives. Within the APA, the President is conspicuously absent. Meanwhile, Article II of the U.S. Constitution, imposing on the President an ill-defined duty to “faithfully execute” the laws, has nothing to say about what kind of executions are sufficiently faithful and what, exactly, the President can do about it besides require written reports and fire officials. Nor does it offer insight into what “execution” actually means under conditions of legal indeterminacy.

Since the law doesn’t provide any answers, legal scholars seeking to define a role for the presidency within the administrative state must conscript extra-legal sources. For example, formalists import a strict separation-of-powers theory — a theory not written into and unsupported by constitutional text or history — to justify a unitary executive. Functionalists, all the while insisting that the three branches “share the reigns of control,” invite us to reproduce bicameralism, presentment and judicial review within administrative decision-making. But they fail to specify the role that is to be played by the President in particular.

In this paper, I agree that the law cannot, on its own, guide us between these two choices. The problem is that these theories can only ever imagine the President as playing a playing a populist role in governance. They just disagree on whether this is a thing to celebrate or to lament.

But what happens when we set forth a different role for the presidency? What if the President can represent us in a way that avoids the pitfalls of populism and its dangerous logic? Can a president be powerful, effective, and democratically legitimate political representative without also being a strongman? I think that maybe there is. Namely, those presidents who have most precisely followed a model of democratic trustee representation have been those who were neither tyrants nor pen pushers, but leaders who expanded democracy and the rights ascribed to all citizens equally. The best democratic presidency, I argue, is a presidency that speaks for those normally excluded from normal lawmaking. As a result, the President has a special duty to speak for marginalized communities most in need of a voice.

Highly recommended.

Download of the Week: "Textualism and Progressive Social Movements" by Eyer

The Download of the Week is Textualism and Progressive Social Movements by Katie R. Eyer.  Here is the abstract:

Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments. The conclusion that textualist legal arguments ought to be embraced by progressive social movement lawyers has important implications for progressive legal academics. As teachers and scholars, progressive legal academics can play an important role in facilitating—or undermining—the efficacy of progressive textualist arguments in the courts. As such, even for those progressives who may not view textualism as a valuable normative project, there may be utility to engaging seriously with textualism as teachers and scholars.

Highly recommended.

Download of the Week: "Contemporary Non-Positivism" by Atiq

The Download of the Week is Chapters 2 & 3 of Contemporary Non-Positivism by Emad H. Atiq.  Here is the abstract:

This text offers a consolidated defense and elaboration of the thesis that the existence of a legal system, along with the legality of specific rules within any such system, depends on facts of morality. Positivists who deny this dependency struggle to explain regular features of laws and legal systems that invite explanation. These include: (1) the traditional classification of moral principles as a form of a priori law; (2) the fact that judges often rely on moral principles in the discovery of legal rules; (3) persistent theoretical disagreement among jurists about intra-systemic, law-determining facts; (4) the fact that radically arbitrary or immoral schemes of social organization represent borderline cases of law at best; and (5) the fact that law, like other functional artifacts, is susceptible to kind-relative evaluation: it is evaluable as law. Meanwhile, traditional versions of non-positivism—natural law theory, Dworkinian interpretivism, the “one-system” view, and a broader class of contemporary theories offering dual-character and aggregative-cluster accounts of the concept of law—overstate the dependency in ways that turn out not to be justified by explanatory need. Nevertheless, one can combine insights captured by these differing accounts to formulate a moderate position that goes no further than the desiderata warrant. The starting point for this synthetic view is that law is an abstract artifact, created and sustained through collective agency, with the essential function of realizing a distinctive yet imperfectly understood normative ideal. The existence and persistence of a legal system depends, to some minimal degree, on the system’s realization of the relevant ideal. Law can thus be located within a broader network of normative or value-driven artifacts, such as artworks, a comparison that proves vital for understanding legal language, reasoning, and practice.

This will be a very important book.  Highly recommended.  Download it while it's hot!

Download of the Week: "Too Much, Too Quickly?" by Coan (Link Fixed)

The Download of the Week is Too Much, Too Quickly? by Andrew Coan.  Here is the abstract:

This Article explores the increasingly common but under-theorized claim that the Supreme Court is changing too much, too quickly. The claim is a general one, not limited to the current historical moment. But major shifts on the Court over the past three years have thrust it to the center of the constitutional conversation. The Article therefore begins by surveying prominent contemporary examples spanning abortion rights, gun rights, race, religion, and the administrative state. It then asks how we should define and measure constitutional change.

With this framework in mind, the Article proposes four ways of understanding the “too much, too quickly” critique: as an argument for across-the-board judicial gradualism, as mere sour grapes or bad faith, as unapologetic ideology, and as a call for context-sensitive gradualism specific to the current Court that nevertheless seeks to transcend ideology in the narrow left right sense. Each of these understandings has strengths and weaknesses, but this Article shows that all four are necessary for a complete picture. Their complex interplay illuminates the central question posed by the “too much, too quickly” critique—namely, how to balance the costs and benefits of constitutional change.

The main upshot is that moral and ideological judgment are extremely difficult and perhaps impossible to fully disentangle from any assessment of constitutional change. But neither is this assessment wholly reducible to ideology in any narrow or simple sense. Different versions of the critique can also overlap or operate in conjunction, raising complex questions about mixed motives that neither critics nor defenders of the Court have adequately appreciated. Meanwhile, the charge of sour grapes is significantly harder to establish than is typically supposed. The charge may still be justified in some cases, but it is most useful as a kind of stress test for critics of the Court to guard against internal inconsistency and motivated reasoning in their own thinking. Finally, different understandings of the critique will often point in different directions, with potentially profound implications for abortion rights, gun rights, affirmative action, and more.

Important, careful, and helpful.  Highly recommended.  Download it while it's hot!

Download of the Week: "Constitutional Clash: Labor, Capital, and Democracy" by Andrias

The Download of the Week is Constitutional Clash: Labor, Capital, and Democracy by Kate Andrias.  Here is the abstract:

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s promise of free labor; guarantee social and economic rights to workers; expand who qualifies as an equal member of the demos; and forge a more democratic governance structure, with less power for the judiciary and more democratic control over the political economy. The potential threat has not escaped the notice of capital. Business is responding with reinvigorated arguments about the First Amendment, the Takings Clause, due process, equal protection, nondelegation, and the Dormant Commerce Clause, as well as appeals to common law concepts of managerial control and property rights.

By examining labor’s efforts and business’s response, this Article shows that contemporary fights about labor are also inherently fights about constitutional law—about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation. The Article also offers lessons for how to engage in nonjuriscentric constitutionalism; highlights the importance of advancing an affirmative constitutional agenda; and, from the range of labor’s efforts, outlines a coherent substantive alternative to both business’s constitution and the post-New Deal constitutional compromise that has, in many ways, failed to guarantee a democratic and egalitarian political economy.

Highly recommended.

Downloads of the Week: "Obstructing Precedent" by Watson & "Reasons for Interpretation" by Urbina

There are two Downloads of the Week.  The first is Obstructing Precedent by Bill Watson.  Here is the abstract:

Critics of the Supreme Court sometimes accuse the justices of disrespecting or being unfaithful to precedent—of severely undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is an important prerequisite to understanding the Roberts Court’s treatment of precedent in a wide range of cases.

Roughly put, a court obstructs precedent when it refuses to cooperate with its prior self in building a coherent body of law. The court reaches a holding in the instant case that cannot be justified by the same rationale—the same weighting of values or purposes—as justified its holding in the precedent case. As a result, the same institution seems over time to speak not with one voice but with multiple discordant voices that reflect no unified political vision. Over the last few years, the Roberts Court has repeatedly obstructed precedent in just this sense in cases spanning diverse areas of the law.

Those who criticize the justices for disrespecting or being unfaithful to precedent usually imply that the justices have thereby acted illegitimately. But that conclusion is too quick. There is nothing inherently illegitimate about obstructing precedent, either legally or politically; obstructing precedent can sometimes be a salutary means of gradual change. At the same time, the Court’s aggressive pattern of obstructing precedent in recent years is cause for concern, given how that pattern undermines the impersonality of the justices’ reasoning and risks further eroding public trust in the Court.

Highly recommended.  Download it while it's hot!

And the second is Reasons for Interpretation by Francisco J. Urbina.  Here is the abstract:

What kinds of reasons should matter in choosing an approach to constitutional or legal interpretation? Scholars offer different types of reasons for their theories of interpretation: conceptual, linguistic, normative, legal, institutional and reasons based on theories of law. This Article argues that normative reasons, and only normative reasons, can justify interpretive choice. While many believe that normative reasons — such as those related to the realization of justice, fairness, or the rule of law — play some role in interpretive choice, no one holds explicitly that non-normative reasons should be irrelevant. Many find intuitive the idea that, for example, the very concept of interpretation, or the nature of communication or law, constrain interpretive choice. Even scholars who make the case for the role of normative reasons in interpretation grant some independent weight to non-normative reasons. This Article formulates the normative choice thesis explicitly for the first time, and it offers a systematic analysis of the different kinds of reasons usually canvassed to defend theories of interpretation, showing why each type of non-normative reasons cannot justify interpretive choice.

The Article highlights some implications of the normative choice thesis, the most important of which is “contingency.” If interpretive choice cannot be grounded in some immutable truth about the idea of interpretation or language, but only on normative reasons, then it is liable to change with circumstances. There should be no expectation that a single approach to constitutional or statutory interpretation will always be the right one. This challenges some well-established features of our legal culture, such as the common practice of committing to a single approach of interpretation (“I’m an originalist,” “I’m a living constitutionalist”), or of expecting judges to be consistent in their approaches to interpretation.

Highly recommended.  Download it while it's hot!