Legal Theory Blog

Schroeder & Carlson on the Role of Legal Academics

Jeanne L. Schroeder (Yeshiva University - Benjamin N. Cardozo School of Law) & David Gray Carlson (Yeshiva University - Benjamin N. Cardozo School of Law) have posted Improve Yourself; Not the World on SSRN. Here is the abstract:

This essay questions the predominant assumption within legal academia that the goal of scholarship should be to give policy advice. We do not make the obvious point that it is questionable whether legislatures care about what law professors think. Rather, we claim that policy suggestions fall within what Jacques Lacan called the “discourse of the university”. The terminology reflects not a normative judgment that professors should speak it, but an empirical observation that they all too often do speak it.

The discourse of the university is expertise. It is not a true critical discourse, but a discourse of power because it is an attempt to make others act in a preferred way. It serves, often inadvertently, as an adjunct to the more obvious exercise of power called the “discourse of the master”, which is roughly equivalent to Hart’s concept of law. The master’s voice, like positive law, is to be obeyed not because it is moral, but merely because it is recognized as authoritative. By seeking to justify legal rules, the discourse of the university provides the missing rationalization for the master, thereby strengthening its reign. That is, the master tells you what to do; the university tries to convince you why you should do it.

The two power discourses are to be contrasted to two critical discourses of the analyst and the hysteric. If the power discourses are those of the governor, the critical discourses are those of the governed: the subjects subjected to law.

The analyst’s discourse is that of interpretation and counseling. The hysteric’s is the discourse of challenge. We argue that not only should they be the predominant discourses of practice, but also of theoretical and doctrinal scholarship.

Very interesting & highly recommended.

Strandburg on Physician Patenting Norms

Katherine J. Strandburg (New York University School of Law) has posted Legal But Unacceptable: Pallin v. Singer and Physician Patenting Norms (in Intellectual Property at the Edge: The Contested Contours of IP (R. Dreyfuss and J. Ginsburg, eds.) (2014)) on SSRN. Here is the abstract:

In intellectual property discourse, the edge tends to be defined by disputes between producers and consumers or between upstream and downstream innovators. This Chapter tells a different kind of story, about the edge between the patent-based innovation system and a user innovator community governed by norms of reputation and sharing. In this story, a cataract surgeon’s attempt to enforce his surgical method patent in the early 1990s brought forth a surprisingly strong response from the medical profession. The incident generated a reaffirmation of the norm in the AMA’s ethical principles and a political movement that led to Congress’s passage of Section 287(c) of the Patent Act, exempting medical professionals from patent remedies in many cases. The Chapter argues that these events are fruitfully understood in light of the rejection of patenting by many user innovator companies in favor of norms-based systems of free revealing and sharing accompanied by reputational rewards.

Jaffe on Textualism

Peter Jaffe (Georgetown Journal of Law & Public Policy) has posted Varieties of Textualism: Unit of Analysis and Idiom in the Interpretation of 18 U.S.C. Sec. 924(C) (Georgetown Journal of Law & Public Policy, Vol. 7, No. 1, 2008) on SSRN.  Here is the abstract:

In his essay A Matter of Interpretation, Justice Scalia draws a distinction between "reasonable" textualism and strict constructionism. However, Scalia does not precisely explain the distinction, and instead offers the interpretive problem of 18 U.S.C. Sec. 924(c) (prohibiting the use of a gun during and in relation to drug trafficking crimes) to elucidate the difference in approaches.In his essay A Matter of Interpretation, Justice Scalia draws a distinction between "reasonable" textualism and strict constructionism. However, Scalia does not precisely explain the distinction, and instead offers the interpretive problem of 18 U.S.C. Sec. 924(c) (prohibiting the use of a gun during and in relation to drug trafficking crimes) to elucidate the difference in approaches.

Judging from this example, it would appear that Scalia's "reasonable" textualism differs from "strict constructionist" textualism in two respects. First, strict constructionism's unit of analysis is the single word; it looks to the denotation of individual words and then constructs meaning from those words using the rules of grammar and textual canons of construction. Scalia's textualism, on the other hand, recognizes not only words, but phrases, clauses, and sentences as indivisible units of meaning. Second, strict constructionism refuses to acknowledge literary devices such as the idiom. Scalia's textualism, on the other hand, recognizes such literary devices in statutory text.

Recognizing these subtle differences in approach sheds light on why textualist judges occasionally come to different conclusions using ostensibly similar methods. Such differences in conclusion do not reflect empirical disagreements, but instead reflect subtle theoretical differences.

I really liked this paper--highly recommended.

A few quick observations:

• I have serious doubts about the continued usefulness of the phrase--"strict constrructionism."  Although I know believe that the phrase likely had a well-defined sense early in our constitutional history, it now seems obscure.  On this see, Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Much of the conceptual confusion that has arisen in both constitutional theory and in theories of statutory application results from the realist conflation of the interpretation-construction distinction.  (See generally Legal Theory Lexicon 063: Interpretation and Construction).  The distinction is an old one--it figures prominently in the history of doctrine in several fields.  Roughly, it can be stated as follows:
  
  • Interpretation is the practice of ascertaining the linguistic meaning or semantic content of a legal text (e.g., constitution, statute, contract, will, etc.).
  • Construction is the practice of translating semantic content into legal content.  For example, if the semantic content of a text is vague, then its application to a particular case may require a construction that draws a bright line (or resolves the vagueness using case-by-case balancing or some other technique).
• For this reason, the term "strict construction"--if it is to be retained in the vocabulary of contemporary legal theory should be used to express the following idea:

The legal content derived from a legal text should be strongly constrained by the semantic content.

Of course, this formulation is itself vague.  "Strong constraint" could itself be construed in various ways, for example:

The Principle of Consistency: Strong constraint could be construed as the requirement that the legal content derived from a text should be consistent with the semantic content.  (That is, no rule derived from the text may contradict the semantic content of the text.)

The Principle of Identity: Strong constraint could be construed as the requirement that the legal content derived from a text by courts should be identical with the semantic content.  (That is, no court should add supplementary rules (such as implementing rules) to rules that have legal content that is the contemporary legal translation of the linguistic meaning of the text.)

• Jaffe makes an important point when he notes the importance of two different approaches to discovery of the linguistic meaning (semantic content) of a text.  One begins with individual words and then applies the rules of syntax and grammar to derive the meaning of the text as a whole.  The second adds a preliminary step--determination whether there are phrases that have meanings that are distinct from the meaning of the individual words.  Here is a passage from the article:

Strict constructionist textualists and Scalia’s-kind-of-textualists differ because the former select words as its unit of analysis, whereas the latter select both words and larger units of analysis, such as phrases and clauses. More precisely, a strict constructionist textualist ascertains the meaning of each word in a text151 and combines those meanings to construct the text’s meaning.152 The strict constructionist may encounter a group of related words placed together, where those words clearly inform each others’ meanings; it will analyze each word individually, but treat the surrounding words as context. On the other hand, a SKOT ascertains the meaning not only of words but also of phrases and of clauses, and combines those meanings to construct the meaning of the larger text. When encountering a group of related words placed together, it will— depending on the circumstances—treat surrounding words as an integral part of the unit whose meaning is to be determined, rather than as mere context for the unit whose meaning is to be determined. The subtle difference between these approaches partially explains the different outcomes between strict constructionists and SKOTs.

Although I think Jaffe has the labels wrong (he should be discussing interpretation and not construction), the substance is right.  And on this score, Scalia is surely correct that the linguistic meaning of an utterance is frequently not derivable from the individual words using the principle of compositionality (word plus syntax & grammer = meaning).  But how do we know when a phrase has an ideomatic meaning that is not equivalent to the meaning that would result from application of the principle of compositionality?

• This brings me to my final observation.  The linguistic meaning of an utterance is bound by context.  That is, the same string of words yields different semantic content in different contexts.

Read Jaffe.

My own take on many of these issues is provided in Semantic Originalism.

Marmor on Pragmatics & Legal Language

Andrei Marmor (University of Southern California - Law School) has posted The Pragmatics of Legal Language on SSRN. Here is the abstract:

In most standard cases, the content of the law is tantamount to the content that is communicated by the relevant legal authority. It has been long noticed by linguists and philosophers of language, however, that the content of linguistic communication is not always fully determined by the meaning of the words and sentences uttered. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed is very often pragmatically enriched by other factors. My purpose in this essay is to explore some of the pragmatic aspects of understanding what the law communicates. I argue that in some respects the pragmatics of legal language is unique, sometimes uniquely problematic. Exploring those problems forms one of the aims of this essay. But I suggest that we can do more than that: by drawing on the distinctions between the various pragmatic aspects of language use, we should be able to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions.

And from the text:

The pragmatic aspect of language use is typically associated with two key ideas: one idea refers to the prevalent role that context plays in understanding the content of an act of communication. The second idea is related to the distinction between what has been said or asserted, and what has only been implied or implicated.3 It is important, however, not to conflate these two issues: context may play a crucial role in our ability to understand what has been asserted whether there is any further implicated content or not. And vice versa: though it is often the case that implied content is context dependent, this is not necessarily so; there are cases in which the content implied is not particularly context- sensitive.

And a bit more:

Abstractly, the idea is this: one might think that just as we draw conclusions about the maxims that apply to an ordinary conversation from the basic cooperative objective of ordinary conversations, we should be able to draw some conclusions about the maxims that would apply to legislative speeches from the nature and objective of such communicative interactions. As we noted earlier, the Gricean maxims of conversation are normative instantiations of the general purpose of a conversation seen as a cooperative exchange of information. Legislation is a different kind of conversation. Can we not simply observe the main objectives of such conversation and then draw some conclusions about the relevant conversational maxims that would instantiate those objectives? Perhaps we can think about it in a way which is very similar to a competitive game. The purpose of competitive games is not the cooperative exchange of information; games manifest certain forms of strategic behavior. However, the rules of the game typically determine what counts as the point of the game, what kind of skills and abilities one would need to exhibit in order to play the game and play it successfully.27 Typically we can draw some conclusions from the purpose of the game about different forms of conduct in it that would be deemed permissible, and others, which would not be permissible. Consider chess, for example. Since it is an intellectual kind of competition, we should be able to conclude that chess players are not allowed to use physical intimidation as part of their tactics in the game.28 In other games, however, such as boxing, and perhaps even football, physical intimidation might be perfectly acceptable. In other words, we can draw some normative conclusions about the kind of moves players should be allowed to make, simply from the nature of the game and its general purposes. Can we extend this analogy to legislation, and try to deduce some maxims of conversation that would basically instantiate our conception of what kind of “game” legislation is, so to speak?

This is the best work I've seen on this important topic, and it is highly recommended.

Slocum on Contractionist Statutory Interpretation

Brian G. Slocum (University of Memphis - Cecil C. Humphreys School of Law) has posted The Problematic Nature of Contractionist Statutory Interpretations (Northwestern University Law Review Colloquy, Forthcoming) on SSRN. Here is the abstract:

The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the expansionist interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. These expansionist interpretations have discouraged moderate legislators from supporting progressive legislation and are partly to blame for the current polarization of Congress and the paucity of such legislation.

Rodriguez and Weingast assert that courts in the 1960s and 1970s were able to achieve expansionist interpretations of progressive legislation by misusing legislative history to support inaccurate conclusions about the intent or purpose of Congress. While the article's insights are an important contribution to statutory interpretation scholarship, the dominant trend has been for judges to rely more on rules of interpretation to determine statutory meaning and less on pragmatic analysis or conclusions about likely congressional intent or purpose. Thus, if progressive social legislation were enacted today, courts would likely not engage in the same improper expansionist interpretations as they did in the past. They would, however, likely engage in improper narrowing interpretations. This Essay explains how the rules of statutory interpretation are currently geared towards producing narrow statutory interpretations and illustrates through a recent example how these interpretations are often inconsistent with the judiciary's role as faithful agents of Congress.

Interesting & recommended.  I've provided a link (above) to Rodriguez & Weingast's important paper.

Krishnakumar on the Roberts Court & Legislative History

Over at Concurring Opinions, Anita S. Krishnakumar has a terrific post entitled Early Reflections on the Roberts Court and Legislative History.  Here is a taste:

What emerges from this miniature dissection are a few tentative principles: (1) Six of the nine Justices are willing to consider legislative history; three are willing to do so in every statutory interpretation case to help divine the statute’s meaning in the first instance, while three are willing to do so only if they believe the text to be ambiguous or if the legislative history is used merely to back up a textual argument they find convincing; and (2) the unlikely trio of Souter, Kennedy, and Alito are the Court’s swing Justices with respect to reliance on legislative history. Any party or advocate possessing persuasive or “smoking gun” legislative history will have to convince at least two of these three Justices that such legislative history is consistent with the statute’s plain meaning or that it clarifies an otherwise ambiguous statutory provision in order to get these “swing” Justices to rely on that history.

Lipshaw on Apple

Over at Legal Profession Blog, Jeff Lipshaw has a nifty post entitled The Apple GC, Speech Acts, and the Backdated Options.  Here's a taste:

There is a fascinating linguistic issue at work in the civil complaint just filed by the SEC against Nancy Heinen and Fred Anderson, the former general counsel and chief financial officer, respectively, of Apple, Inc. arising out of allegedly backdated options, which is a hot news story today.  I'm going to assume the allegations to be true for purposes of some observations as to what I would call standard practice, but not necessarily of legal liability.

Lot's of interesting stuff in the rest of post, including nice use of the illocutionary/perlocutionary distinctionf rom speech act theory.

Chen's Statutory Interpretation Reading List

Check out Statutory interpretation: a rudimentary reading list by Jim Chen at Jurisdynamics. The list includes contemporary classics like William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990) as well as new work, such as Adrian Vermeule's new book Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (2006).

Update: Link fixed!

Johnson on Skinner

Calvin Johnson has a post entitled What does Quentin Skinner (Words are Deeds) Mean?  Here's a taste:

"Original intent" or "motive" is commonly used to refer to non-binding motives. Only the meaning of the authors of the Constitution are binding on us, but not their motives or their intents. Jed Rubenfeld, Revolution By Judiciary (2005) uses intent as the part of the Founder's statements that are not binding on us. Sometime motive refers to the private, off the deal intents that do not get incorporated into the meaning.

I am not very fond of the terminology. An author has an intent in writing. To strip the author's intent from the words leaves the words as random. I understand that a contract draftsman can be bound by things he said as the other party understands them even if that is not what the draftsman meant or intended to say. Still what the author meant or intended to say is a perfectly sound basis of what words mean.

One of my favotire topics. Is Johnson right? Is it the case that "To strip the author's intent from the words leaves the words as random"?  One way to get at this question is via Paul Grice’s distinction between speaker’s meaning and sentence meaning.  

Grice’s idea of speaker’s meaning is actually quite familiar.  We get at the idea of speakers meaning all the time in ordinary conversations: “What did he mean by that?”  In the context of legal texts, we ask questions like: “What did the legislature mean by the provision?”  “What did the judge mean by that sentence in the opinion?”  “What did the framer’s mean by that clause in the Constitution?”

Grice contended that speaker’s meaning, in turn, can be analyzed in terms of a speaker’s (or author’s) intentions.  And so far, Grice and Johnson are in agreement.

Grice's point about speaker's meaning and intentions is illustrated by the following thought experiment:

Imagine that you have stopped at an intersection at night. The driver of another car flashes his lights at you, and you make the inference the reason for her doing this is that she wants to cause you to believe that you lights are not on. And based on this inference, you now do, in fact, realize that your lights are not on.

In this example, the meaning of the flashing lights is the product of the following complex intention—as explicated by Richard Grandy and Richard Warner:

1) The driver flashes his lights intending

2) that you believe that your lights are not on;

3) that you recognize her intention (1);

4) that this recognition be part of your reason for believing that your lights are not on.

In the case of imperatives, the intention is that the audience (or reader) perform a certain act on the basis of the reader’s recognition of the author’s intention that the reader perform the act.  When Johnson asserted--To strip the author's intent from the words leaves the words as random--he was thinking about what Grice calls speaker's meaning.

But this is where it gets interesting.  Because Grice differentiates "speaker's meaning" from "sentence meaning."  What is sentence meaning?  In its simplest (and perhaps simplified) form, the idea is that words and expressions have standard meanings—the meanings that is conventional given relevant linguistic practices.

There is an obvious parallelism between Grice’s discussion of speakers meaning and sentence meaning and contemporary debates in constitutional theory. In that debate, a distinction is drawn between two forms of originalism—“original meaning originalism” and “original intentions originalism.”

In the case of a constitution, speaker’s meaning (or author’s meaning) can be redescribed as “framer’s meaning.” Framer’s meaning depends on what the framer’s intended, given what they knew about contemporary ratifiers and interpreter’s knowledge of their intentions.

Likewise, “sentence meaning” can be redescribed as “clause meaning.” Clause meaning is the meaning that would be assigned to a clause, on the assumption that the clause was written with the knowledge that it would be ratified and interpreted by readers who would have very limited access to information about the framing and who would be under normative pressure to disregard any information wasn’t universally accessible. The meaning of the Constitution is best understood as the clause meaning of its provisions. But this does not entail that history and evidence about original meaning is not relevant to the process of constitutional interpretation.

Clause meaning is not ahistorical or acontextual. Linguistic conventions change over time. Words and phrases that once had one public meaning may come, over time, to acquire another. Of course, in the case of the Constitution, the Constitution itself acts as a check on this process. That’s because the Constitution is itself public, widely available, and central to our legal culture. Constitutional usages are likely to be preserved, simply because they are repeated, studied, quoted, and interpreted--processes that provide a great deal of historical continuity. But in those cases in which the original public meaning of the Constitution has been swept away by a shift in the linguistic (or political) winds, the clause meaning is the “sentence meaning” that would have been assigned at the time the constitution was ratified and not the sentence meaning that we would assign based on contemporary linguistic practices.

What does this mean for Johnson's assertion--To strip the author's intent from the words leaves the words as random?  That assertion is based on an erroneous assumption--that all meaning is speaker's meaning--or in the case of a constitution, that all constitutional meaning is framer's meaning.  That's false.  Framer's meaning can be distinguished from clause meaning.  And constitutions (including the United States Constitution) should be interpreted in accord with their clause meaning, not framer's meaning,  But that's another argument.

A Neoformalist ManifestoIntroduction It started

A Neoformalist Manifesto

Introduction It started with a findlaw column by Edward Lazarus on the theme of judicial intergrity. I responded with a post entitled: Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, and Matthew Yglesias endorsed some of my remarks. Sunday morning Jack Balkin responds in a post that I urge you to read--awesome. In this post, I respond to Jack Balkin's critique and provide A Neoformalist Manifesto. So here goes.
Neoformalism: What? Labels are tricky. "Formalism" is one of the labels that is most often used by instrumentalist critics of the idea that judging can proceed on the basis of public rules that have relatively stable and determinate meanings. Tom Grey has a very good paper entitled, "The New Formalism," that provides a marvelous but critical discussion of renaissance of formalism in contemporary American legal thought. And when I outted myself as a "formalist" on this blog in January, I titled the post Confessions of Neoformalist to distinguish my views from the "formalism" that we all "know" was impossibly simplistic and wrongheaded. By "neoformalism," I simply mean an up-to-date version of formalism that takes into account contemporary legal theory and reformulates formalist notions so as to acknowledge both American legal realism and sophisticated analytic legal philosophy--especially the important line of thought that runs through Hart-Raz-Dworkin-Finnis and many others.
Neoformalism: Why? This is a deep and important question--obviously an adequate answer is far beyond the limits of a single post on a blog, but there is a central theme that can be stated simply and concisely. Neoformalism is an attempt to craft a normative theory of judicial practice that answers to the values that we summarize with the phrase the rule of law. On the one hand, the rule of law serves a cluster of instrumental purposes. Neoformalist judging makes the law more predictable and certain--allowing individuals and firms to plan. Neoformalist judging also avoids the long-run problems that can be created by the politicization of the law. When the law becomes thoroughly politicized, it is inevitably corrupted as even the most routine lawsuits become an opportunity for rent-seeking and patronage. On the other hand, the rule of law provides an important set of protections for human liberty and basic human rights. Instrumentalism (or legal realism in its instrumentalist form) is simply not up to the task of fully realizing the very great values we associate with the rule of law. In a nutshell, instrumentalism leads to politicization and over time, the politicization of the judiciary will inevitably undermine the rule of law. I know that these arguments are impossibly sketchy, but that's the best I can do in a paragraph.
Neoformalism: How? How would a neoformalist practice of judging work? In my post on Saturday, I offered a very brief sketch. For the purposes of illustration, I will discuss only constitutional cases. I do this for two reasons. First, because widening the scope of discussion to include common-law adjudication, statutory interpretation, and administrative law would make even a bare sketch unbloggable. Second, because constitutional interpretation is thought to be a difficult case for formalists. I began my brief sketch with by saying, "first and foremost judges should follow the rules laid down.," and I followed that with a set of guidelines that neoformalist judges might follow in constitutional cases. Let's try to present those more formally, as a set of principles, which are lexically ordered:

Principle One, Precedent: Judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis. Among the features of such a doctrine is that even courts of last resort (i.e. the United States Supreme Court) should regard their own decisions as binding, unless there is a compelling reason to do otherwise.
Principle Two, Plain Meaning: When the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text.
Principle Three, Intratextualism and Structure: When the text of a particular provision(s) is ambiguous, judges should construe that provision so as to be consistent with other related provisions and with the the structure of the Constitution as a whole.
Principle Four, Original Meaning: If ambiguity still persists, judges should make a good faith effort to determine the original meaning, where original meaning is understood to be the meaning that (i) the framers would have reasonably expected (ii) the audience to whom the Constitution is addressed (ratifiers, contemporary interpreters), (iii) to attribute to the framers, (iv) based on the evidence (public record) that was publicly available. (Adapting Grice's formulation of speaker's meaning.)
Principle Five, Default Rules: And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law. (And in this post, I will only offer a promissory note with repsect to the content of such principles.)
Principle Six, Lexicality and Holism The first five principles are to be understood as lexically ordered in the following sense. Judges should order their deliberations by the first five principles--attempting to structure their conscious deliberations by attending to the features highlighted by each each principle in order before proceeding to the next principle. But this requirement does not entail that judges either will not or should not recognize that the considerations thematized by one principle may be relevant to deliberations explicitly organized by another principle. Thus, the interpretation of a precedent will sometimes (perhaps always) require consideration of the text, structure, and original meaning, and so forth. (Lexical ordering is a guideline for structuring deliberation, and is not inconsistent with the observation that interpretation involves what Gadamer called the hermeneutic circle.) These are principles not rules, and lexical ordering operates a methodological heuristic and not as a rigid rule.

It goes without saying that this is a simplified theory of constitutional interpretation. It is offered for the purpose of pointing in the direction of a more fully-developed neoformalist theory of judging.
Neoformalism: Who? A neoformalist methodology is a necessary but not a sufficient condition for realization of the rule of law. Even the most elaborately detailed set of methodological principles would be of no avail, if applied by judges who aimed to bend the method to the goals supplied by their political ideology. For this reason, a neoformalist theory of judging is incomplete without a complimentary account of judicial character--of the judicial virtues and vices. To adumbrate this aretaic turn, for neoformalist to work, judges must be selected for thier possession of the following virtues, among others:

--Judicial Courage. Judges must not be so fearful of their social position or reputation that they are unwilling to do what the law requires, even when it will be unpopular.
--Judicial Temperance. Judges must have their desires in order--in order to avoid the temptations that can lead to corruption. The phrase "sober as a judge" reflects the recognition of this fact in folk jurisprudence.
--Judicial Intelligence. Judges need to be pretty smart, because the law is frequently complicated or obscure. Moreover, a good judge must be "learned in the law."
--Judicial Wisdom. Sound rule application requires legal vision--the ability to recognize the legally salient features of a choice situation. Rules do not apply themselves, and only a judge with the virtue of phronesis or practical wisdom will consistently apply the rules in a sensible way.
--Justice. Judges must posesse the virtue of justice--the disposition to decide in accord with the law, as opposed to whim, partiality, bias, or political ideology.

Let me repeat an important point--the laws do not apply themselves and correlatively the constitution does not interpret itself. Bad judges can make a mess of the best system of rules. Corrupt judges can depart from even the clearest rule. Political judges can bend the law to their own ends. But stupidty, corruption, and politicization are not inherent features of human nature. Judicial virtue is possible, and many judges on the bench today are virtuous. Neoformalist depends on these facts.
The Virtue of Justice

Balkin's Brilliant Argument And this brings me back to Balkin's primary challenge. Balkin raises exactly the right objection. He makes the right move. He focuses the debate on the crucial issue: what is the virtue of justice? I will explain after I quote Balkin's formulation of the objection:

Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.
Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down."

Oh, man! Am I in trouble now. Balkin has chosen his example with care. It seems to put me on the horns of an inescable dilemma. Either I agree that the gender equality decisions were wrong when originally decided--showing that I am against equality for women (and putting me in very bad company) or I try to argue for the Supreme Court's gender equality jurisprudence on neoformalist grounds. But if I grasp the second horn of the dilemma and try to argue that neoformalism supports the gender equality decisions, then I will open the door for Balkin to show that I am really a neorealist in disguise. Now, I am sweating. How will I get out of this?
Biting the Bullet So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.
The Flip Side And it is important to remember that there is a flip side of Balkin's argument. It is an accident of history that Balkin and I are debating these issues in 2003. In the long run of American history, the Warren and Burger courts are not the rule, they are the exception. The judicary is not usually the vanguard of progressive politics. The judiciary is usually a force for conservative values and entrenched interests. Balkin argues for constitutional change through what he calls high politics (see Balkin here, my satirical critique here, and Balkin's reply here.) But high politics can be practiced by the left and the right, by the progressives and conservatives, by the friends and foes of women's equality. If you read Balkin's full post, you will find that he argues that the Supreme Court's gender equality jurisprudence cannot be supported by precedent, text, structure, or original meaning. Balkin argued that the only justification for the gender equality decisions was "high politics." This is very, very important. So Balkin's theory argues that high political judicial decisionmaking is justified even when the decisions run contrary to the precedents, text, and original meaning of the Constititution. And hence, Balkin is committed to the proposition that high political decisions overruling Roe v. Wade or Brown v. Board or even the very genderal equality decisions he endorses would be legitimate. Legitimate, not right. Balkin can argue that the high politics that would lead to these results would be bad high politics. But he cannot argue that it would be illegitimate high politics. By way of contrast, neoformalism leads to the conclusion that it would be illegitimate to overrule Roe, Brown, or the gender equality decisions for political reasons. If Balkin's theory were followed, then the progressive decisions he treasures can be blown away by a shift of the high-political winds (the jet stream of politics). If neoformalism were to prevail, then the progressive decisions he treasures and many Rehnquist Court decisions he dislikes would both be protected from high political hurricanes and tornados. Of course, neoformalism does not require precedents to remain unaltered forever. A gradual process of case-by-case adjustment can lead even neoformalists to the conclusion that a precedent has become bad law.
The Downside of High Politicization But the flipside is not the real downside of Balkin's theory. The real downside of "high politics" is that it poses a fundamental threat--over the long run--to the rule of law. Balkin is a master rhetorician and a brilliant argumentative tactician, but even he cannot disguise the true nature of his position. Balkin's fundamental position is that the judges should make political decisions in constitutional cases, even when those decisions cannot be justified by precedent, text, or history. Balkin knows that many readers (especially those outside of the legal academy and departments of political science) will have great difficulty swallowing this radical position. So he tries to sugar coat it. Here is what he says:

Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.

Stunning! Stunningly audacious, that is. By the wave of his magic wand, Balkin transforms decisions that would be understood as lawless by any conventional understanding of the norms of judicial craft into decisions made "according to law." Black is white. Up is down. Left is right. Law is politics. But a rose by any other name would smell as sweet. High politics are politics, nonetheless. High politicization may seem attractive in the short run, but where will it lead in the long run?
The Downward Spiral of Politicization Actually, high politics might not be such a bad thing in a society with a strong and stable consensus on matters of fundamental value. In such a society, judges would rarely need to strike down legislation on the basis of high political decisionmaking. And when high politics were called for, there would be little disagreement on the bench--since the judges would all share the same political ideology. But we don't live in that kind of polity. As Balkin recognizes, high politics are highly contentious in our current circumstances. Moreover, we are closely divided on a variety of issues with constitutional dimensions. If we live in Balkin's world, then high political ideology becomes the primary criterion for selecting judges--and as a result we get confirmation wars--so long as neither party controls both the Presidency and the Senate. If one party does gain control of both institutions, then it becomes in that party's self-interest to do their best to pack the federal judiciary with ideological judges who will vote for the party's high political preferences when on the bench. Decisions that disregard precedent, text, and history are legitimate--so long as they have high political rationales. Even lower court judges can get into the game. Why not construe Supreme Court precedents very narrowly--if they conflict with your own high political preferences? The Supreme Court can attempt to retaliate with summary reversals, but given the limits of the Supreme Court as an institution, it is inevitable that determined trial court and appellate court judges will be able to circumvent the will of the Supreme Court a great deal of the time. And down the spiral we go. The confirmation process becomes increasingly contentious and bitter. Justices snipe at one another, with colleague accusing colleague of blatantly political decision making. In this atmosphere, will the distinction between high politics and low politics remain inviolate. Will the parties refrain from nominating and confirming low-political judges if they get the chance? Will judges who began their careers as high politicians refrain from low politics once it becomes clear that "Law is the continuation of politics by other means." Does any of this sound familiar?
How Low Can You Go? Very Low! And where is the bottom of a downward spiral of politicization? Where does this all end? We need not avail ourselves of science fiction or possible worlds to answer this question, because the world of a thoroughly politicized judiciary is all too familiar from human history and comparative jurisprudence. A thoroughly politicized judicary offers no protection for human rights when the judges are aligned with the ruling regime. A thoroughly politicized judiciary views every case as an opportunity for patronage and political favortism. And when the rule of law goes, the piper will be paid in more than the currency of human rights. Without the rule of law, the transparency of markets begins to erode and eventually markets begin to collapse. Of course, there are stopping points on the slippery slope short of the complete breakdown of the rule of law. Most significantly, as the rule of law begins to erode the costs begin to become apparent, creating political pressures for the reformalization of the judiciary. My point is not that we are doomed. Quite the opposite. It is that we have choices in the here and now. Deescalation is a possibility. Presidents can nominate judges who are dedicated to the rule of law. The Senate can evaluate those nominees on the basis of their possession of the judicial excellences rather than on the basis of their political ideologies. The highly politicized Supreme Court can gradually move towards a more formalist, constrained approach to constitutional interpretation.

The Virtue of Justice Again Aristotle's account of the virtue of justice sometimes sounds quite odd to modern ears. Aristotle believed that possession of the virtue of justice meant the disposition to act according to law--call this justice as lawfulness. Contemporary jurisprudence and political philosophy has been infected by a very different conception of justice. Those of us who grew up or came to political maturity in the Warren and Burger Court eras came to see the virtue of justice as the disposition to do the right thing even when it was contrary to the rule of law--call this justice as fairness. As youthful enthusiasm gave way to more sober understandings, contemporary jurisprudence labored mightily to reconcile these two conceptions, preserving the great value of the rule of law while simultaneously endorsing the authority of judges to do what we believed was so clearly righteous even in the face of contrary precedents, text, and history. Elaborate theoretical edifices were constructed--some of them stunningly brilliant in their architecture and execution. Ronald Dworkin's theory of law as integrity is one of those efforts. Jack Balkin and Sandy Levinson's theory of constitutional adjudication as high politics is another. And Bruce Ackerman's hugely ambitious version of popular sovereignty theory is yet a third. These are powerful theories, intricately constructed and defended with deep knowledge, clever argument, and convincing rhetoric. But in the end, even our most brilliant theorists have been unable to overturn fact with argument. A constitutional decision that cannot be justified by precedent, text, or history is not a decision according to the rules laid down. The rule of high politics is not the rule of law.
A Category Mistake And that, I think, is why these theorists frequently slide between the normative and the explanatory. Because Jack Balkin is right. You cannot explain constitutional change with a normative neoformalist theory of judging. That would be a category mistake, as Balkin well knows. I can well believe that our constitutional history involves theories like Balkin and Levinson's, Dworkin's, or Ackerman's in an explanatory role. More crudely, of course, Balkin is right. Of course, we can only explain the Warren and Burger Courts by bringing politics into the picture. But that isn't a normative argument. "Ought" implies "can," but "is" doesn't imply "ought."
The Bitter Truth Oh, how I yearn for my optimistc faith that fairness was lawfulness. Oh, how much I want it to be that case that the Constitution is perfectly just. Oh, how I long for the theory that would make this so. Oh, how I wish that my high politics were the law of the land. As a law student, I believed with all my might that it was so. And every once in a while I am able to talk myself into believing once again--although sadly, I find that these glorious moments grow shorter and shorter, fewer and fewer. These days my mouth is full of bitter truth.