Legal Theory Blog

Karlan on the New Countermajoritarian Difficulty

Pamela S. Karlan (Stanford Law School) has posted The New Countermajoritarian Difficulty California Law Review, Forthcoming) on SSRN.  Here is the abstract:

The “countermajoritarian difficulty” was a central preoccupation for twentieth-century constitutional law scholars. Alexander Bickel, who coined the phrase in The Least Dangerous Branch, located that difficulty institutionally in the courts. Judicial review, he wrote, involved the “reality that when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it.” In one of the most influential responses to Bickel’s argument, John Hart Ely asserted that “representation-reinforcing” judicial review poses no such difficulty. According to Ely, that form of judicial intervention carries out the Constitution’s commitment to democratic self-governance—a “constitutional development” that in his description had moved “continuously, even relentlessly” away from limits on “government by majority.”

But what if Ely and Bickel were wrong—Bickel in supposing that the countermajoritarian difficulty was tied to the judiciary and Ely in supposing that our constitutional development has moved unidirectionally toward greater majoritarian democracy? In reality, the way our nation is constituted may be interacting with the way our Constitution was written to produce one of those periods of retrenchment in which we move once again towards government by minority.

This article, originally given as the Jorde Lecture, explores how changes in demography are interacting with constitutional law—both structural features of how political power is allocated and recent Supreme Court decisions—to create a new countermajoritarian difficulty. Part I lays out the constitution of the American electorate. That electorate is changing demographically—becoming more racially and ethnically diverse, more geographically concentrated and homogeneous, and more divided, not only in its partisan affiliations, but in its values and its prospects for the future. Part II explains that some fundamental, hard-wired features of our Constitution—in particular, the Senate and the Electoral College—are assisting a shrinking white, conservative, exurban numerical minority to exert substantial control over the national government and its policies. Part III then shows that the current Supreme Court is countermajoritarian in a way that enables this entrenchment. Far from engaging in representation-reinforcing judicial review, the Court’s decisions contribute to “the ins . . . choking off the channels of political change to ensure that they will stay in and the outs will stay out” regardless of what the people would choose.

Highly recommended.

McClain on Fulton v. City of Philadelphia & President Bush's Faith Based Initiatives

Linda C. McClain (Boston University - School of Law) has posted Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing “Armies of Compassion” 2.0? on SSRN.  Here is the abstract:

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination. It highlights how, in doing so, they enlisted or rejected analogies between race and sexual orientation discrimination—and between objections to interracial marriage and same-sex marriage—that were powerful, pervasive, and contested in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission but scarcely featured in Roberts’ Fulton opinion.

Recommended.

Goldberg on First Amendment Pathologies

Erica Goldberg (University of Dayton School of Law) has posted First Amendment Contradictions and Pathologies in Discourse (Arizona Law Review, Forthcoming) on SSRN.  Here is the abstract:

A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence. Our current First Amendment model creates pathologies in discourse that are exacerbated in our modern age of easy communication. The reason for these pathologies lies in the relationship between reason and emotion, both in human psychology and in First Amendment doctrine. But the solution to these speech pathologies is not to dramatically alter First Amendment doctrine, which, despite claims that the First Amendment is ill-equipped to deal with modern problems, is needed now more than ever.

Recommended. 

Smith on State Legislatures & the Elector Appointment & Elections Clauses

Hayward H. Smith has posted Revisiting the History of the Independent State Legislature Doctrine on SSRN.  Here is the abstract:

In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” during the nineteenth century (before it was abandoned in the twentieth century).

This article debunks the Substance/Procedure Thesis. Previously unreviewed historical evidence, including that arising from a review of the 1776 drafting history of the predecessor language of Article V of the Articles of Confederation, confirms that the founding generation understood that “legislatures” would be subject to substantive state constitutional restrictions as well as constitutionally-mandated lawmaking procedures. The evidence shows that the framers of the Elector Appointment and Elections Clauses — including in particular John Dickinson and James Madison — expected that state constitutions would impose substantive limitations on “legislatures.” The evidence also demonstrates that the Framers’ subjective expectations were shared by other members of the founding generation. State constitutions adopted in the years immediately following the Founding contained substantive restrictions on election law that, although they did not explicitly refer to federal elections (as did the Delaware constitution of 1792), were understood to apply to all elections, including federal elections.

This article also debunks the Prevailing View Thesis. It cannot be sustained on any objective view of the evidence. A review of every state constitution adopted during the 1800s reveals that both explicit and non-explicit limitations on “legislatures” were widespread before, during, and after the Civil War. On the other hand, apart from the House of Representatives contested election case of Baldwin v. Trowbridge (1866), the doctrine was little more than a lawyer argument episodically invoked in House contested election cases or state courts, without prevailing in either forum. Suggestions to the contrary are based on mischaracterizations of the cases.

Finally, this article argues that the episodic invocations of the doctrine that did occur in the nineteenth century are irrelevant under any form of argument from history relevant to constitutional interpretation. In particular, Baldwin v. Trowbridge should not be treated as if it were judicial precedent — and not only because it has been overtaken by subsequent Supreme Court decisions. In deciding contested election cases in the late nineteenth century, and particularly in the 1860s, the House of Representatives was acting in a demonstrably non-judicial manner. Courts should not afford its decisions respect under the doctrine of stare decisis.

Legal Theory Lexicon: Fit and Justification

Introduction

In 1975, Ronald Dworkin published Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously chapter 4 (Harvard University Press, 1977)). This is one of the most famous and influential articles in contemporary legal theory, and I would put it very high on my recommended legal-theory reading list. Lot's of Dworkin's ideas are very controversial, but one of his claims has become part of the way that many and perhaps most legal academics think about the law in general and the enterprise of judging in particular. I am referring to Dworkin's distinction between "fit" and "justification" and his claim that when judges decide hard cases, they choose the interpretation of the law that best fits and justifies the existing legal landscape--the constitution, statutes, regulations, and common law.

As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. I know you are all very busy at this time of year, so I will do my best to be concise.

The Basic Idea

 Suppose a judge is deciding a hard case. It could be a common law case or a constitutional case or a statutory case. How do judges approach this task when they are confronted with a case in which the law is up for grabs? That is, how do judges decide cases where there is an unsettled question of law? Dworkin's basic idea is that the process of deciding a hard case has two dimensions--fit and justification. First, the judge might ask herself, "Of all the possible interpretations of the law that I could adopt as the basis for my decision, which interpretations are consistent with the theory that best fits the existing legal landscape. Of all the rules I could adopt in this case, which ones are consistent with the relevant constitutional and statutory provisions and with the precedent?" When the judge had identified the alternatives that meet the criterion of fit, it is possible that there will be more than one possibility that fits. If so, then the judge can go on to ask the question, "Of the interpretations of the existing law that fit the constitution, statutes, and case law, which is the best interpretation? Which of the possible legal rules that I could adopt is most consistent with the normative theory that provides the best justification for the law as a whole?

Fit

What does it mean to say that a given rule fits the legal landscape? Suppose you are a judge deciding whether your jurisdiction will adopt the rule of contributory negligence or will choose instead to follow the comparative negligence approach. It is possible that only one of these two rules fits the existing law in your jurisdiction. For example, if the legislature has mandated the contributory negligence rule by statute, then as a judge (even a Supreme Court judge), you would be obliged to follow the statute and decide the case before you on the basis of contributory negligence. On the other hand, suppose you are in a newly created jurisdiction. No statute or binding precedent requires either comparative or contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification.

Justification

What does it mean to say that a judge might prefer one rule over another on the basis of the criterion of justification? Let's continue with our example of the choice between contributory and comparative negligence. Since there is no statute or precedent that compels (or strongly guides) the choice, the judge must turn to some other basis in order to make her decision. She will need to get normative, i.e., to consider the normative justifications for tort law. Simplifying greatly, let's suppose our judge decides that the tort of negligence is best understood as a system of compensation and "risk spreading." She might then reason that the comparative negligence rule does a better job of serving this purpose than does a contributory negligence rule. Contributory negligence allows losses to go uncompensated when the plaintiff (victim) caused any of her own loss; comparative negligence does a better job of spreading the risk of accidents. [I know that this is a very crude argument, and I'm sure all of you can do better.]

In other words, the judge asks the question, "What normative theory best justifies the existing law and negligence?" And then proceeds to the question, "Given that justification of tort law, which of the alternative rules that I could apply to the case before me best serves the purposes of tort law?"

Two Kinds of Justification: Principle and Policy

In Hard Cases, Dworkin identified two different kinds of arguments that can be used to justify the law. He called these two different types arguments of "principle" and "policy." As understood by Dworkin, arguments of principle are arguments that appeal to ideas about fairness and rights. If you would like to know more about arguments of principle, a good place to begin is with the Legal Theory Lexicon entry on Deontlogy.

Arguments of policy, on the other hand, appeal to consequences. For example, if you argued that a comparative negligence rule is better than a contributory negligence rule because it provides optimal incentives for taking precautions against accidents, you would have made an argument of policy in Dworkin's sense.

If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism.

Dworkin himself argued that judges should consider arguments of principle and should not decide cases on the basis of arguments of policy. That feature of his theory is hugely controversial--as you could guess if, like most law students, you've heard endless discussion of policy in the classroom. But Dworkin could be right about "fit and justification," even if he is wrong that the dimension of justification is limited to principle and excludes policy.

Conclusion

It is very difficult to generalize about law school exams; they vary enormously. But many standard issue spotting essay questions have built into them a "hard case," an aspect of the fact pattern that is intended to trigger your discussion of the question, "What should the rule be?," with respect to some controversial legal issue. If you try to answer the question, "What should the rule be?," by telling your instructor, "Here is the majority rule," or "Here are two alternative rules; I don't know which one is the law, you will have missed the point of the question!

And that's where Dworkin comes in. You can use "fit and justification" as the basis for organizing your answer to a "What should the law be?" question. Begin with fit. Which possible rules are consistent with the settled law? Then move to justification. Of the rules that fit, which is the best rule? Now list the arguments of principle and policy for and against each of the plausible candidates. Be sure to come to a conclusion. That is, end with something like, "Adopting a rule of comparative negligence is required by the theory that best fits and justifies the existing law of torts."

One final point.  Although Dworkin himself may not have believed that his views had changed over time, many commentators and critics believe that his later work places greater emphasis on the dimension of justification and lessor emphasis on the dimension of fit.  Even if this is true of Dworkin himself, the early version of his theory continues to influence the way that legal scholarship is done by many legal scholars.

Related Lexicon Entries

• Legal Theory Lexicon 055: Principles in Constitutional Theory
• Legal Theory Lexicon 059: The Law Is A Seamless Web
• Legal Theory Lexicon 065: The Nature of Law
• Legal Theory Lexicon 069: Reflective Equilibrium

Bibliography

• Ronald Dworkin, Law's Empire (Cambridge MA: Harvard University Press 1986).
• Ronald Dworkin, Taking Rights Seriously (Cambridge MA: Harvard University Press, 1977).

Other Resources on the Web

• Nicos Stavropoulos, Interpretivist Theories of Law, Stanford Encyclopedia of Philosophy (2003).

(Last revised on September 19, 2021.)

Legal Theory Bookworm: "Fictions, Lies, and the authority of Law" by Smith

The Legal Theory Bookworm recommends Fictions, Lies, and the Authority of Law by Steven D. Smith.  Here is a description:

Fictions, Lies, and the Authority of Law discusses legal, political, and cultural difficulties that arise from the crisis of authority in the modern world.

Is there any connection linking some of the maladies of modern life―“cancel culture,” the climate of mendacity in public and academic life, fierce conflicts over the Constitution, disputes over presidential authority? Fictions, Lies, and the Authority of Law argues that these diverse problems are all a consequence of what Hannah Arendt described as the disappearance of authority in the modern world. In this perceptive study, Steven D. Smith offers a diagnosis explaining how authority today is based in pervasive fictions and how this situation can amount to, as Arendt put it, “the loss of the groundwork of the world.”

Fictions, Lies, and the Authority of Law considers a variety of problems posed by the paradoxical ubiquity and absence of authority in the modern world. Some of these problems are jurisprudential or philosophical in character; others are more practical and lawyerly―problems of presidential powers and statutory and constitutional interpretation; still others might be called existential. Smith’s use of fictions as his purchase for thinking about authority has the potential to bring together the descriptive and the normative and to think about authority as a useful hypothesis that helps us to make sense of the empirical world. This strikingly original book shows that theoretical issues of authority have important practical implications for the kinds of everyday issues confronted by judges, lawyers, and other members of society. The book is aimed at scholars and students of law, political science, and philosophy, but many of the topics it addresses will be of interest to politically engaged citizens.

And from the reviews:

“It is hard to break new ground in thinking about the nature and practice of authority, but Smith’s book, with its introduction of the idea of a fiction into the existing understanding, does just that. And the book’s careful and creative use of multiple philosophical and social science disciplines is an added and unusual benefit.” ―Frederick Schauer, author of The Force of Law

"In this provocative and illuminating work, one of our most insightful legal thinkers explores the nature of real authority. Steven Smith reveals that a loss of authority would be far from liberating. Instead he offers a hopeful account of how genuine authority exists and provides us with a firm place on which to stand." ―Richard Garnett, co-editor of First Amendment Stories

"As he has so often in his previous work, Steven Smith leads us to see familiar concepts in a new light and brings to bear a wide range of disciplines to conversations about law and legal theory. In this work, our understanding of authority gets the Smith treatment, and the result is an imaginative and critical contribution to the literature on legal authority." ―Michael P. Moreland, director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University

Download of the Week: "Functional Equivalence and Residual Rights Post-Carpenter" by Donohue

The Download of the Week is Functional Equivalence and Residual Rights Post-Carpenter: Framing a Test Consistent with Precedent and Original Meaning by Laura Donohue.  Here is the abstract:

The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to further chaos and fragmentation. To take account of the significant challenges ahead, this article proposes that, going forward, courts eschew voluntary assumption of risk. An outgrowth of open space and informant doctrines, the approach imported analogical fallacies into the Court’s jurisprudence and ignored the implications of new technologies. Instead, the Court should return to a property-based approach and extend the rule of functional equivalence, which already characterizes home and border searches, to digital papers. In ascertaining who owns digital documents and records, the Court can employ a but for analysis, asking whether the material would exist but for the right-holder’s actions. To determine whether, by providing access to information, the right-holders divest themselves of their ownership interest in the data, as Justice Gorsuch recognized in Carpenter, the law of bailment and positive law can play a crucial role. English common law has long recognized that possession is insufficient to extinguish a property owner’s residual rights. The approach advocated has the advantage of clarity, adaptation to the modern world, and the restoration of core Fourth Amendment rights protected at the founding.

Highly recommended.

Smith on Aspirational Clauses in the German & Japanese Constitutions

J. Bolton Smith (University of Virginia School of Law, Students) has posted A Tale of Two Clauses: Factors Influencing Modern Effects of Aspirational Clauses in the German and Japanese Constitutions (Virginia Journal of International Law, Forthcoming 2022) on SSRN.  Here is the abstract:

Constitutions sometimes feature clauses listing abstract goals with little or vague direction on how the nation should achieve these aims. These so-called “aspirational clauses” present an interesting situation where a text is adopted by drafters but the specific implementation is left to future generations. This essay will explore how nations carry out the demands of these aspirational clauses. Specifically, analysis will focus on looking at the constitutional interplay between a triad of key actors: the courts, the political parties, and the popular will. These factors and their impact on aspirational clauses will be explored in the context of two case studies focusing on Article 9 of the Japanese Constitution and Article 23(1) of the German Basic Law.

The case studies demonstrate that the unique jurisprudential culture of each country combined with the political environment surrounding the content of the clause have led to divergent experiences. Japan's passive high court and divisive opinions between the people, who support pacifism, and the government, facing practical and ideological pressures to increase Japan’s military capabilities, has led to a bitter stalemate over the meaning of Article 9. Conversely, Germany's strong constitutional court ruling early on the clause’s demands and political environment generally in favor of EU integration has made Article 23(1) a mostly uncontroversial foundation for the country’s EU participation. So, while the three factors listed above will have an impact no matter what clause or country, how the factors interact with the clause depend entirely on a country’s political, national, and jurisprudential character.

Waas on Worker's Voice & the Platform Economy

Bernd Waas (Goethe University Frankfurt - Faculty of Law) has posted The State and New Forms of Collective Voice on SSRN.  Here is the abstract:

The paper analyses the current state of workers´ voice in the platform economy and presents problems, possible solutions and current initiatives. Special attention is given to the role and responsibility of the state in establishing a viable system for collective bargaining.

Rave on Tort Claims as Property Rights & Mass Torts

D. Theodore Rave (University of Texas at Austin - School of Law) has posted Tort Claims As Property Rights (DePaul Law Review, Vol. 69, No. 2, 2020) on SSRN.  Here is the abstract:

Courts have long said that legal claims are a constitutionally protected form of property. But what does that mean? This essay explores the treatment of legal claims as property rights in the context of mass torts in doctrinal, theoretical, and economic terms. Corrective justice and civil recourse conceptions of tort law dictate that tort claims are owned by individual plaintiffs. Allocating these property rights at the individual scale can make it difficult to use public mechanisms, like class actions, to aggregate mass tort plaintiffs’ claims to achieve tort law’s instrumental goals like deterrence horizontal equity. At the same time property rights in tort claims facilitate aggregation and mass settlement through private ordering that often sweeps away individualized distinctions among plaintiffs. While the private aggregate settlements that emerge may sometimes further tort law’s instrumental goals, they do so fortuitously, as a byproduct of intermediaries seeking private gain from bundling claims together for sale to the defendant en masse, and without the transparency or oversight of public alternatives.

Highly recommended.