Legal Theory Blog

Download of the Week: "Administrative Constitutionalism as Popular Constitutionalism" by Ross

Bertrall L. Ross (University of Virginia School of Law) has posted Administrative Constitutionalism as Popular Constitutionalism (University of Pennsylvania Law Review, Vol. 167, No. 1783, 2019) on SSRN.  Here is the abstract:

In the debate about who controls the meaning of the Constitution, popular constitutionalism appears to be losing. Popular constitutionalist methods for popular input into the evolving meaning of the Constitution account for a diminishing fraction of changes to constitutional meaning over time. Social movements remain rare, Congress is increasingly dysfunctional, and recent presidential proclamations and executive orders have not engaged constitutionalism with the degree of specificity necessary to influence the meaning of the Constitution. Focusing on these traditional methods, it appears that judicial supremacy has won and that courts exercise nearexclusive control over the meaning of the Constitution.

In this Article, I argue that such appearances are deceiving. As the debate between popular constitutionalism and judicial supremacy faded from legal scholarship a decade ago, new descriptive and normative accounts of agencies as actors involved in determining the meaning of the Constitution have emerged. Administrative agencies, through their statutory implementation and enforcement roles, are involved in the application of constitutional principles embedded in statutes. While agencies lack the popular pedigree of Congress and the President, these implementation and enforcement decisions often involve the people either formally through notice-andcomment rulemaking or informally through interest group and social movement engagement. Although not labeled “popular constitutionalism,” these forms of popular engagement with agencies that have been richly explored in the historical and normative accounts of administrative constitutionalism should be understood as forms of popular constitutionalism.

Beyond connecting administrative constitutionalism to popular constitutionalism, this Article will identify another means by which agencies through their actions involve the people in constitutional meaning determinations. This account requires a shift in focus from the popular inputs into administrative constitutionalism to the outputs from administrative constitutionalism. I show through the example of recent administrative actions enforcing the Fair Housing Act how administrative actions serve as catalysts for popular debate about the constitutional principles embedded in statutes and the means by which these constitutional principles should be applied.

Highly recommended.

Download of the Week: "The Structure and Legal Interpretation of Computer Programs" by Grimmelmann

The Download of the Week is The Structure and Legal Interpretation of Computer Programs by James Grimmelmann.  Here is the abstract:

This is an essay about the relationship between legal interpretation and software interpretation, and in particular about what we gain by thinking about computers and programmers as interpreters in the same way that lawyers and judges are interpreters. I wish to propose that there is something to be gained by treating software as another type of law-like text, one that has its own interpretive rules, and that can be analysed using the conceptual tools we typically apply to legal interpretation. In particular, we can usefully distinguish three types of meaning that a program can have. The first is naive functional meaning: the effects that a program has when executed on a specific computer on a specific occasion. The second is literal functional meaning: the effects that a program would have if executed on a correctly functioning computer. The third is ordinary functional meaning: the effects that a program would have if executed correctly and was free of bugs. The punchline is that literal and ordinary functional meaning are inescapably social. The notions of what makes a computer ‘correctly functioning’ and what makes a program ‘bug free’ depend on the conventions of a particular technical community. We cannot reduce the meaning and effects of software to purely technical questions, because although meaning in programming languages is conventional in a different way than meaning in natural languages, it is conventional all the same.

Highly recommended.

Download of the Week: "Textualism’s Fault Lines" by Krishnakumar

The Download of the Week is Textualism’s Fault Lines by Anita S. Krishnakumar.  Here is the abstract:

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive theory and practice.

This article provides the first empirical and doctrinal analysis of three central fault lines, or places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive theory. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, this article highlights three surprising textualist fault lines: (1) first, while textualism-in-theory seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualist interpretive practice is decidedly pluralist, as a clear majority of the Court—including all of the Justices widely considered to be textualists—regularly references several interpretive tools that textualism-in-theory rejects; (2) second, while textualism-in-theory insists that statutory terms be given their date-of-enactment or “original public” meaning, textualism-in-practice regularly uses present-day sources to determine statutory meaning; and (3) third, while textualism-in-theory emphasizes the meaning that statutory terms have in everyday conversational speech, textualism-in-practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017-2020 terms, during which the Court’s composition has skewed lopsidedly textualist.

After chronicling these divergences between textualist theory and practice, the article considers and rejects the possibility that they may be attributed merely to faint-hearted judicial application of textualism and that they should be resolved through more disciplined adherence to textualist principles. Instead, the article suggests that textualist interpretive theory may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the article offers some suggestions for how textualist theory might evolve to both reconcile these internal contradictions and to better account for how textualism actually is practiced on the ground.

Highly recommended.

Download of the Week: "Triangulating Ordinary Meaning" by Tobia, Egbert, & Lee

The Download of the Week is Triangulating Ordinary Meaning by Kevin Tobia, Jesse Egbert, & Thomas R. Lee.  Here is the abstract:

Textualism claims to pave a clear path to the determinate “ordinary meaning” of statutory language. But textualist Justices disagree about the ordinary meaning of particular statutes. This essay proposes a new way forward: triangulating ordinary meaning with multiple empirical methods. Specifically, textualists who seek ordinary meaning should in some circumstances consider the possibility of complementing (i) traditional tools–like dictionaries, linguistic canons, and intuition–with newly available data from (ii) corpus linguistics and (iii) survey experiments. As a case study, we consider Pulsifer v. United States, concerning interpretation of the First Step Act. The Supreme Court will soon decide Pulsifer, a decision that likely turns on the Court’s conclusion about ordinary meaning. We present original corpus linguistic and experimental survey studies that bear on this issue. The essay’s conclusions have concrete implications for Pulsifer, a case which could impact the sentences of thousands of drug defendants. This proof of concept also has broader implications for statutory interpretation theory.

This is an important paper that should be widely read.  Highly recommended.  Download it while it's hot!

Download of the Week: "The Fair Notice Fiction" by Cross

The Download of the Week is The Fair Notice Fiction by Jesse Cross.  Here is the abstract:

The Supreme Court has now embraced a radical new direction in statutory interpretation, interpreting statutes only in accordance with their original public meaning. According to the Court, this makes statutes readable for ordinary people, which puts people on notice about their legal obligations. The Court thereby claims that its approach promotes a specific value: fair notice to the public. This theory, which is remaking our statutory law, has generally evaded academic examination.

This Article takes up that critical project, providing a comprehensive academic study of fair notice in legislation. The idea of providing fair notice to the public though statutory text, it discovers, has always been a fiction. The reading of statutory text has always been a language game accessible only to legal elites. This language game makes rhetorical appeals to ordinary people, but in the context of unavoidably elite reading practices.

The Article documents this “fair notice fiction” in both present and past. For the present, it provides a novel study of federal statutory law. This study uncovers the two features that make this law inaccessible to ordinary readers: (1) its length, and (2) its non-transparent interconnectivity. Together, these features require any reader to possess a particular skill, termed “regime literacy,” which ordinary people do not possess and cannot reasonably acquire.

Next, the Article explores the history of fair notice. Through a study of ancient Rome, early England (1066-1800), and America (1787-present), it finds that fair notice always has been a fiction. For significant portions of this history, literacy was low, texts were scarce, and language barriers were rampant. As these obstacles faded, the sheer volume of statutory law became prohibitive.

Finally, the Article outlines a new, realistic version of fair notice. This version seeks to protect two distinct values embedded in fair-notice discussions: (1) public foreseeability, and (2) separation-of-powers principles. The Article explains how these values can be protected in ways that are actually meaningful for ordinary people.

Highly recommended.

Download of the Week: "The Congruent Constitution" by Bybee

The Downloads of the Week are The Congruent Constitution (Part One): Incorporation and The Congruent Constitution (Part Two): Reverse Incorporation.  Here are the abstracts:

Part One: In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the same rights. Ultimately, the Court announced a congruence principle: incorporated rights would be identical to textual rights, jot-for-jot. The congruence principle came with a limitation, however: only select provisions of the Bill of Rights would apply to the states. Nevertheless, selective incorporation is ongoing, as the Court has declared three provisions of the Bill of Rights incorporated in the last decade, and there are other provisions in the Bill of Rights and elsewhere in the Constitution that the Court may yet declared incorporated.

Incorporation may be the most consequential development in the Constitution’s history. But the Court’s record on incorporation is not a flattering one. This Article reviews the troubled history of incorporation and considers the arguments for incorporating the remainder of the Bill of Rights and provisions of the Constitution beyond the Bill of Rights. The Article concludes with three points. First, the Court’s current theory based on the Due Process Clause is textually incoherent. Selective incorporation is descriptive of what the Court has done, but it is not a theory of interpretation. There are better theories available, but so far, the Court has resisted any additional changes in its approach. Second, in adopting the congruence principle, the Court has over-enforced some constitutional provisions and under-enforced others. The Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to all levels of government. Indeed, the Court’s congruence principle may have deterred it from completing the incorporation of the Bill of Rights. Third, the Article concludes that the congruence principle may be convenient for the Court, but congruence cannot justify the Court’s choices. Incorporation has vastly expanded the Court’s authority to regulate the states, without the sanction of legislation or amendment under Article V. Incorporation has also constrained Congress’s power under Section 5 of the Fourteenth Amendment. Through incorporation the Court has altered both our federalism and our separation of powers.

Part Two: In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause. The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the nineteenth century—but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant.

This Article reviews the history of reverse incorporation, most of which has not been told before. The Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating a congruent Constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V.

Highly recommended.  Download them while they are hot!

Download of the Week: "The End of Batson?" by Frampton & Osowski

The Download of the Week is The End of Batson? Rulemaking, Race, and Criminal Procedure Reform by Thomas Frampton & Brandon Osowski.  Here is the abstract:

On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature of American trial adjudication, were abolished. Arizona’s move is part of an important trend (one that has largely escaped scholarly attention): after decades of inaction at the federal level, states have begun experimenting with new ways to counter racial exclusion in the selection of juries. Nearly one-sixth of the country now lives in a jurisdiction where Batson v. Kentucky does not provide the basic framework governing peremptory strikes, and more states are contemplating reforms. Perhaps as noteworthy as the scope of Arizona’s reform is how the state’s abolition of peremptory strikes came about: wielding its rulemaking authority, the Arizona Supreme Court simply got rid of them. Indeed, the court did not even issue an explanation for its new rule, despite the private reservations—disclosed here for the first time—of some justices. Most of the other states’ reforms have followed the same trajectory: rather than announce new constitutional rules through adjudication (or call upon their legislatures to enact new statutes), state supreme courts have exercised their broad quasi-legislative authority to promulgate new rules of criminal procedure.

This Article makes four main contributions. First, it situates the recent wave of rulemaking reforms in broader historical context, revisiting the century-long conflict between state judiciaries and legislatures for control over American criminal procedure. Second, it provides the first comprehensive account of recent state-level developments that are quietly reconfiguring how American juries are constituted. It situates this development as a response to anemic efforts by the U.S. Supreme Court to meaningfully counter racial exclusion in recent decades, tracks how various state-level reform efforts have built upon one another, and highlights how these experiments depart from federal anti-discrimination doctrine. Third, it provides a close descriptive account of Arizona’s historic abolition of peremptory strikes, based largely upon original interviews with the key actors, including the Chief Justice of the Arizona Supreme Court. We surface a surprising explanation for why the overwhelmingly conservative court endorsed abolition: many key actors perceived the reforms undertaken elsewhere to confront systemic racism and implicit bias as “too woke.” Finally, we use the abolition of peremptory strikes in Arizona to explore the broad judicial rulemaking power that many (but not all) state supreme courts currently wield. We offer a detailed analysis of the current legal landscape throughout the fifty states, exploring where an ambitious state supreme court could, and could not, undertake further reforms to jury selection (or revamp criminal procedure more broadly).

Highly recommended.

Download of the Week: "Self-Coup and the Constitution" by Hemel

The Download of the Week is Self-Coup and the Constitution by Daniel J. Hemel.  Here is the abstract:

A “self-coup”—or “autogolpe”—is the sudden seizure of power by a President or other chief executive in contravention of a nation’s laws. Although the term “self-coup” is relatively new, the phenomenon was familiar to the Framers, who made references at the Constitutional Convention to historical and contemporaneous episodes that we would now likely label “self-coups.” After the Convention, both Alexander Hamilton and James Madison addressed the self-coup threat in the Federalist Papers, presenting two contrasting but potentially complementary visions of how the new Republic might manage the risk of a presidential power grab. The Hamiltonian approach focused on presidential selection mechanisms and incentive structures, with the goal of guaranteeing that the Commander-in-Chief would have neither the inclination nor motivation to pursue a self-coup. The more familiar Madisonian model emphasized institutional checks and balances designed to ensure that the other branches and the states could and would restrain a President who went rogue.

This Essay seeks to trace the Hamiltonian and Madisonian models from inception through the bloody events of January 6, 2021, which marked the violent crescendo of the first self-coup attempt in American history. Although Hamilton and Madison both failed to foresee key legal and political developments, their writings on self-coup proved surprisingly prescient in significant respects. Consistent with Hamilton’s vision, “peer review” in presidential selection produced a line of leaders who—until Trump—were committed to playing by the constitutional rules of the game. But whereas Hamilton thought that the locus of peer review would be the Electoral College, instead it was the major political party establishments that came to fulfill the peer review function. Meanwhile, presidential incentive structures evolved in ways that favored the peaceful transition of power, even though the particular incentive that Hamilton emphasized—the perpetual prospect of reelection—never took on the central role that Hamilton ascribed to it. Madison, for his part, correctly anticipated that multiple layers of institutional safeguards would be necessary to check the President, though arguably the most important safeguard—the internal separation of powers within the executive branch—was one that Madison overlooked.

Following the Hamiltonian and Madisonian logics across the centuries can help us better understand how the United States avoided a self-coup attempt for so long and why that streak ended when it did. Reflecting on Hamilton and Madison’s insights, as well as their oversights, also can shed light on institutional reforms that may reduce the risk of another attempted self-coup or, worse yet, a successful one. Changes to the presidential primary process and tailored standards for post-presidential prosecution can shore up American democracy’s Hamiltonian defenses. Amendments to the process of filling executive branch and Supreme Court vacancies can bolster the Madisonian model’s multiple layers of protection. And beyond generating specific policy proposals, the Hamiltonian and Madisonian models—along with 235 years of intervening experience—can offer us a clearer view of American democracy’s strengths and vulnerabilities in the wake of the country’s first attempted self-coup.

Highly recommended.

Download of the Week: "Class Action Settlements as Contracts?" by Erichson & Leib.

The Download of the Week is Class Action Settlements as Contracts?  by Howard M. Erichson & Ethan J. Leib.  Here is the abstract:

Courts routinely declare that class action settlement agreements are contracts, and when called on to interpret and enforce such settlements, courts invoke principles of contract law. But is a class action settlement really a contract? The relevant agreement in a class settlement is struck between a defendant and class counsel or class representatives; it is not an agreement with class members. What binds class members to the deal is not that they agreed to it, nor even that they agreed to be represented, but rather that a judge found the matter suitable for class treatment and entered judgment approving the proposed settlement terms. It is the law of judgments, not the law of contracts, that prevents class members from pursuing claims released in a class action settlement. Although certain aspects of contract law are apt, the nature of class settlements calls for an interpretive regime that places less emphasis on intent of the parties and more emphasis on the scope of the deal that a judge saw fit to approve. This Article explores how courts should interpret the language of class action settlement agreements. It offers a framework that attends to the dual nature of class settlements and the agency risks that inhere in their negotiation. It encourages courts to stop reflexively treating class settlement disputes as contract disputes, but ultimately, whether courts call a class settlement a “contract” is less important than whether they understand the nature of these instruments and the modes of enforcement, interpretation, and construction that are appropriate to their implementation. Just as courts have deployed distinctive interpretive frameworks to shape contract law for other transactional contexts, they can similarly bring more thoughtful justice to the domain of class action settlement agreements.

Highly recommended.

Download of the Week: "Power Corrupts" by Bremer

The Download of the Week is Power Corrupts by Emily S. Bremer.  Here is the abstract:

Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be a thick concept of administration. But as a field, administrative law today neglects administration, focusing instead on power and the institutions that wield it, particularly the Supreme Court, the President, and Congress. This paper traces the field’s reorientation from administration to power, beginning with the deportation cases that revealed thinner-than-acknowledged political will behind the Administrative Procedure Act (APA), through the misunderstood shift from adjudication to rulemaking, to the rise of presidential administration and the emergence of the Chevron doctrine. The cumulative effect of these developments has been to move administrative law’s focus up and out, away from the people and the operational needs of administration and toward the highest levels of federal policymaking and political power. The paper argues that administrative law’s obsession with power corrupts the field and has led slowly but inexorably to the abandonment of the core work of administration: fairly and faithfully giving effect to the law in the real world. It concludes by offering some preliminary thoughts about how to recenter administration in administrative law.

Highly recommended.  Download it while it's hot!