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Abstract: As is increasingly apparent, the United States is a free speech and free press outlier. With respect to a large range of issues - defamation, hate speech, publication of information about ongoing legal proceedings, incitement to violence or illegal conduct, and many others - the United States stands alone, not only as compared to totalitarian states, but also in comparison with other open liberal constitutional democracies. The reasons for this divergence are common, but among the explanations are the complexities of the trans-national migration of legal and constitutional ideas, differential commitments to libertarian visions as a matter of basic political theory, differences in the constitutional text, differences in political and legal history, differences in the role of various interest groups, and differences in views about constitutionalism and the role of the courts. This paper attempts to explore in an explanatory but non-evaluative way the causes of American free speech exceptionalism.
Human Rights, Law and Legal Institutions
Abstract: Since Herbert Wechsler's famous article, the topic of neutrality has played central stage in many debates about judicial review specifically and constitutional law generally. On closer inspection, however, it turns out that the heading of "neutrality" encompasses not one but four different debates. One is about principled adjudication, another is about decision according to rules, a third is about substantive neutrality, and the fourth is about the desirability (or not) of designing the institutions of judicial review without regard to likely substantive outcomes and without regard to the likely staffing of those institutions. This paper distinguishes these four conceptions of neutrality and analyzes each of them.
Abstract: The 1958 debate in the pages of the Harvard Law Review between Lon Fuller and H.L.A. Hart is one of the landmarks of modern jurisprudence. And although much of the debate was about the relative merits of Hart's version of legal positivism and Fuller's brand of natural law theory, the debate also contained the memorable controversy about the fictional rule prohibiting vehicles from the park. By examining this debate, and by largely removing it from the surrounding controversy over positivism and natural law, we can still gain valuable insights about legal rules, legal interpretation, and the nature of legal language.
jurisprudence, legal reasoning, interpretation
Abstract: Cognitive scientists and others who do research on analogical reasoning often claim that the use of precedent in law is an application of reasoning by analogy. In fact, however, law's principle of precedent is quite different. The typical use of analogy, including the use of analogies to earlier decisions in legal argument, involves the selection of an analog from multiple candidates in order to help make the best decision now. But the legal principle of precedent requires that a prior decision be treated as binding, even if the current decision-maker disagrees with that decision. When the identity between a prior decision and the current question is obvious and inescapable, precedent thus imposes a constraint quite different from the effect of a typical argument by analogy. The importance of this is not so much in showing the a common claim in the psychological and cognitive science literature is mistaken, but that the possibility of making decisions under the constraints of binding precedent is itself an important form of decision-making that deserves to be researched in its own right.
precedent, analogy, legal reasoning, thinking and reasoning, cognitive psychology, Advocacy and Persuasion, Ethics/Political Philosophy, Law and Legal Institutions
Abstract: There is an ongoing debate in contemporary jurisprudence over whether law, properly conceived, is capable of incorporating morality. And these debates have their important practical analogues, especially in American constitutional law. For this is where lawyers and scholars argue about whether, for example, the guarantees of equal protection, freedom of speech, and the free exercise of religion, as well as the prohibitions on cruel and unusual punishments and unreasonable searches and seizures, require courts and other governmental decisionmakers to adhere to the correct moral principles regarding equality, freedom of speech, freedom of religion, punishment, and (locational) privacy. That these and other constitutional clauses appear to speak in moral language is relatively uncontroversial, but far more controversial is what it means for authoritative law to speak in moral language, and how, if at all, such language connects law with what it is simply and pre-legally morally right (and wrong) to do. These debates about the status of morality in legal argument are important, but our goal here is not to engage them frontally. Rather, we wish to illuminate a particular aspect of these debates. And that aspect is the logic of the incorporation by law of morality, and the way in which, if at all, law can retain its lawness and retain its ability to perform law's essential functions while still being open to the full universe of moral considerations. In a word, we do not believe that this is possible, and thus we believe, and shall argue here, that even when law incorporates morality it can only serve law's primary and essential functions if it has a considerable degree of resistance to the pressure of at least some morally correct moral claims. In other words, we strive here to make the moral argument for law's ignoring of at least some moral arguments in legal decision-making.
positivism, rules and standards, incorporation of morality
Abstract: It is widely believed that the structure of free expression adjudication varies dramatically between the United States, on the one hand, and Canada, South Africa, and the European Convention on Civil Rights, among others, on the other hand. Under the conventional wisdom, American freedom of expression doctrine is largely about categorization and about efforts to exclude categories of expression from any constitutional scrutiny, while the approach in other liberal constitutional democracies is more honest, more open, and more straightforward about balancing freedom of expression interests against other social values. On closer analysis, however, it appears that the differences are less than they appear, and what differences that exist are largely a function of differential experience with freedom of expression problems and differential commitments regarding the substance of freedom of expression and also regarding the role of the courts.
freedom of expression, constitutional law, comparative law
Abstract: Although a great deal of sexual harassment takes place without words, even more of it does not. Whether it be the words that are used to make the kind of "quid pro quo" proposition that characterizes the classic if-you-sleep-with-me-you-will-not-get-fired form of sexual harassment, or the catcalls and other words of taunting that create the archetypal hostile environment, a vast amount of what uncontroversially counts as sexual harassment under the law takes place through the use of what would be called "speech" in the ordinary, non-technical, non-legal, non-First-Amendment sense of that word. Historically, much of this speech has not been considered "speech" in the First Amendment sense, but more recently both the professional and public discourse has begun to apply First Amendment tools to what had previously been considered conduct well outside the precincts of the First Amendment. This paper traces this shift, and offers some possible explanations for the "speech-ing" of sexual harassment.
Abstract: Although a great deal of sexual harassment takes place without words, even more of it does not. Whether it be the words that are used to make the kind of "quid pro quo" proposition that characterizes the classic if-you-sleep-with-me-you-will-not-get fired form of sexual harassment, or the catcalls and other words of taunting that create the archetypal hostile environment, a vast amount of what uncontroversially counts as sexual harassment under the law takes place through the use of what would be called "speech" in the ordinary, non-technical, non-legal, non-First-Amendment sense of that word. Traditionally, sexual harassment using words was treated as sexual harassment and not the kind of speech with which the First Amendment was concerned. More recently, however, what had previously been treated as pure sexual harassment has been sociologically transformed into the kind of speech that implicates the First Amendment, and this paper explores the way in which the transformation has occurred, and the consequences of the transformation.
Abstract: In this essay we take up the question of the non-legal foundations of any legal system, and in particular H.L.A. Hart's notion of the ultimate rule of recognition, the master rule that pedigrees the other rules governing what officials and citizens are legally obligated to do. Initially, we shall raise but not necessarily resolve several questions about Hart's own account of the rule of recognition. But even though we leave those questions largely unresolved, we shall come away from this discussion with a sufficiently firm grasp of the idea of a rule of recognition to proceed to the second part of the essay. In that part we look at the United States Constitution - and the practices that have developed regarding its interpretation and enforcement - through the lens of the idea of an ultimate rule of recognition. And when we do so, we shall encounter some foundational questions about constitutional law and interpretation: Does the rule of recognition in the American legal system change over time, and if so, how does this occur? Has the Constitution itself changed other than by organic processes - processes prescribed by the Constitution itself - and, if so, how? If interpreters employ different interpretive methodologies in interpreting the Constitution, is there one constitution, or are there several (overlapping) constitutions? And if the latter, how is stability achieved? If the Supreme Court (or some other governmental body with final interpretive authority) misinterprets the Constitution, what is the legal status of such a misinterpretation, and why? And finally, given that one function of a constitution is to entrench the "rules of the game," and given that any entrenched rule will suffer from over- and under-inclusiveness with respect to its background purposes, how is it possible for officials and citizens to accept as binding the ultimate rule of recognition and the constitutional and subconstitutional rules it pedigrees? Our enterprise in this paper is primarily conceptual and descriptive rather than normative. We shall be attempting to identify the rule of recognition in the United States. Or rather, we shall be attempting to identify the multiple rules of recognition in the United States, for we believe that actual American recognitional practices are multifaceted. There is also, however, a normative element in our paper, for we maintain that settlement for settlement's sake is an important legal, social, and moral value, and yet our existing recognitional practices inevitably put settlement at risk.
rule of recognition, judicial review, judicial supremacy, interpretation
Abstract: Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities - cases, statutes, constitutions, regulations, articles, and books, primarily - are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law's use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.
sources, authority, citation, jurisprudence
Abstract: First Amendment doctrine has traditionally been carved along conceptual rather than institutional lines. Legal categories like "public forum," "content-neutral," and "defamation" have dominated the doctrine, with the general understanding being that it was the nature of the speech or the nature of the restriction that determined protection, as opposed to the nature of some institution in which communication or its restriction took place. First Amendment doctrine has been reluctant to take much notice of pre-legal institutional categories, such as "press," "universities," and "libraries," but allowing the increased use of such institutional realities in the design of First Amendment doctrine may well produce a First Amendment doctrine with far fewer anomalies and much greater utility.
Law and Legal Institutions
first amendment, freedom of speech, freedom of press, constitutional law
Abstract: In Evaluation and Legal Theory, Julie Dickson argues, against me and against Hart, that the beneficial moral consequences attaching to accepting one or another concept of law should have no place in deciding which concept of law is true. In response, I argue that a concept of law, as both Dickson and I acknowledge, is subject to change over time, and may vary across cultures. Yet once we recognize that the concept of law is contingent and variable, we can recognize that prescribing what the concept of law ought to be is no less plausible an enterprise than describing what our concept of law now is. And for the prescriptive enterprise, although plainly not for the descriptive one, the beneficial moral consequences flowing from accepting a particular concept of law are an unavoidable component of the task.
jurisprudence, conceptual analysis, philosophy of law
Abstract: There is a large literature on legal transitions, mostly focusing on the allocation of the cost of legal change in areas such as taxation and the taking of property by eminent domain. Another literature looks at precedent and rules, exploring the legal system's own internal constraints on legal change. Yet there has been less attention on systemic legal change, in which entire legal systems change. When we look at systemic change, however, whether in post-colonial Africa and the Caribbean in the 1960s and 1970s, in Eastern Europe in the early 1990s, in South Africa in the mid-1990s, or in countries such as Vietnam now, it turns out that legal systemic change has often been slower and less consequential than the political and economic changes in the same societies. In searching for the causes of the comparative resistance of law to change, we find that a range of impediments including the staffing of legal systems, the disproportionate preference for stability among external forces, and the nature of legal thought produce a degree of path dependence and resistance to change that are different for legal transition than for political and economic transition.
International Development, Law and Legal Institutions
Abstract: Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for research directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges - finding and interpreting the relevant law, most prominently - are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage.
judges, judging, psychology and law, legal reasoning, judicial reasoning, judicial decision-making
Abstract: Although the language of the First Amendment refers to freedom of speech, it turns out that most of the vast universe of speech remains untouched (and thus unprotected) by the First Amendment. Antitrust law, the law of securities regulation, the law of criminal solicitation and conspiracy, much of labor law, most of the law of evidence, most of the law of sexual harassment, along with scores of other examples, involve legal control of speech that is well understood to lie beyond the boundaries of the First Amendment's concerns. It is not that some of these regulations satisfy a higher burden of justification imposed by the First Amendment. Rather, it is that the First Amendment does not even show up in the analysis. But if we look for an explanation of why the speech that lies beyond the boundaries of the First Amendment remains outside the First Amendment's ken, we find that explanation not in the theory of freedom of speech or the legal doctrine of the First Amendment, but instead in an often serendipitous array of political, cultural, social, and economic factors that determine what makes the First Amendment salient in some instances of speech regulation but not in others. If we examine First Amendment salience more closely, we see that the First Amendment's special political and cultural place in American society gives it a kind of magnetism that leads a wide variety of legal and political claims to migrate to the First Amendment. But we see as well that numerous other non-legal factors determine, far more than legal factors, which of those opportunistic claims to First Amendment attention will succeed and which will not.
Law and Legal Institutions, Press and Public Policy
Abstract: It is commonly argued that one virtue of common-law rule-making (or law-making) is that the common law judge is enriched in being able to make legal rules while simultaneously seeing one concrete application of such a rule. Under the traditional view, the live dispute before the law-making court gives that court an appreciation of the real people, real facts, and real controversies with which the rule must deal. But legal rules, unlike adjudications, are general, and thus encompass multiple individuals and multiple facts. The task of the common law rule-maker, is therefore to assess the larger field that the putative rule will cover, and the larger array of events that the rule will control. Doing this in the context of a concrete controversy, however, is likely to give the rule-maker a distorted rather than accurate picture of what the larger array looks like. The phenomena of availability, anchoring, and issue framing, each well-documented in modern behavioral economics, social psychology, and political science, will all serve to focus the court's attention on the immediate case, and at the same time lead the court to believe that the immediate case and its salient features are more representative of the larger array than is in fact the case. The very availability of the concrete dispute, exacerbated by the obligation of having to decide it, may thus be far more distorting than illuminating to a law-making court, and may consequently call into question the traditional respect not only for the value of concrete disputes and concrete parties as providing the best platform for prospective law-making, but perhaps also for the common law method in general.
Abstract: Suppose you have a wooden board, and you need to drive a nail into it. You have the nail, and you have the board, but you do not have a hammer. You do, however, have a pipe wrench. What do you do? Faced with this problem, some people would simply abandon the task. Not possessing the right tool for the job, they would take the position that it would be better that the task not be performed than that it be performed poorly. But most of us would react differently. Especially if the task is genuinely important, we will whack away at the nail with the pipe wrench. This will take longer than it would have taken with a hammer, the nail will still probably not go all the way into the board, and the wrench will likely be damaged in the process. But it would be better than nothing. In many respects, the culture of First Amendment discourse and argument, both in the courtroom and in the larger culture, exhibits many of the features of the story of the nail and the pipe wrench. With surprising frequency, people and organizations with a wide array of political goals find that society has not given them the doctrinally or rhetorically effective argumentative tools they need to advance their goals. The absence of these legally or culturally accepted arguments, like the absence of the hammer, disturbs them, but it also leads them, faced as they are with immediate goals that cannot wait until the world is reordered, to look for plausibly effective but ill-fitting tools. And in looking for these imperfect but usable tools, they often find that the leading candidate is the First Amendment. Like the pipe wrench, the First Amendment is frequently called upon to do a job for which it is poorly designed. The job frequently gets done, but, as with driving a nail with a pipe wrench, the job gets done poorly, and the tool is damaged in the process.
Abstract: A lie involves three elements: deceptive intent, an inaccurate message, and a harmful effect. When only one or two of these elements is present we do not call the activity lying, even when the practice is no less morally questionable or socially detrimental. This essay explores this area of "less-than-lying," in particular intentionally deceptive practices such as fudging, twisting, shading, bending, stretching, slanting, exaggerating, distorting, whitewashing, and selective reporting. Such deceptive practices are occasionally called "paltering," which the American Heritage Dictionary defines as acting insincerely or misleadingly. The analysis assesses the motivations for, effective modes of, and possible remedies against paltering. It considers the strategic interaction between those who palter and those who interpret messages, with both sides adjusting their strategies to account for the general frequency of misleading messages. The moral standing of paltering is discussed. So too are reputational mechanisms - such as gossip - that might discourage its use. Paltering frequently produces consequences as harmful to others as lying. But while lying has been studied throughout the ages, with penalties prescribed by authorities ranging from parents to philosophers, paltering - despite being widespread - has received little systematic study, and penalties for it even less. Given the subtleties of paltering, it is often difficult to detect or troubling to punish, implying that it is also hard to deter. This suggests that when harmful paltering is established, the sanctions against it should be at least as stiff as those against lying.
Advocacy and Persuasion, Ethics/Political Philosophy, Law and Legal Institutions, Press and Public Policy, Regulation
Abstract: Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jurgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and the process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making.
Abstract: Both criminal and regulatory law have traditionally been skeptical of what Jeremy Bentham referred to as evidentiary offenses - the prohibition (or regulation) of some activity not because it is wrong, but because it probabilistically (but not universally) indicates that a real wrong has occurred. From Bentham to the present, courts and theorists have worried about this form of regulation, believing that certainly in the criminal law context but even with respect to regulation it is wrong to impose sanctions on a "where there's smoke there's fire" theory of governmental intervention. Yet although this kind punishment by proxy continues to be held in disrepute, both in courts and in the literature, we argue that this distaste is unwarranted. Regulating - even through the criminal law - by regulating intrinsically innocent activities that probabilistically but not inexorably indicate not-so-innocent activities is no different from the vast number of other probabilistic elements that pervade the regulatory process. Once we recognize the frequency with which we accept probabilistic but not certain burdens of proof, probabilistic but not certain substantive rules, and probabilistic but not certain pieces of evidence, we can see that defining offenses and regulatory targets in terms of non-wrongful behavior that is evidence of wrongful behavior is neither surprising nor inadvisable.
Business and Government Policy, Crime and Criminal Justice, Economics - Microeconomics, Environment and Natural Resources, Law and Legal Institutions, Regulation
Abstract: Ronald Dworkin has maintained, against me and others, that thinking about law 'as a kind of social institution' 'has neither much practical nor philosophical interest.' This reply challenges that claim, arguing that the social and institutional status of a norm-generating institution may be essential for the identification legal norms. Anti-positivists such as Dworkin deny this, but it then turns out that the claim of a lack of practical or philosophical importance for legal institutions as institutions presupposes the falsity of legal positivism. Legal positivism may perhaps be unsound, but only if that is true, and perhaps not even if it is true, does the institutional status of law have neither practical nor philosophical interest.
Abstract: As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) 'brain scans,' have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have promoted such claims, most aggressively resist them, and arguing that the research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, insisting that poor science has no place in the law. But although the existing studies have serious problems of validity when measured by the standards of science, and true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or of reliability, is dispositive for law. Law is not only about putting criminals in jail, and numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt. And because legal and scientific norms, standards, and goals are different, good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for law. Indeed, the exclusion of substandard science, when measured by scientific standards, may have the perverse effect of lowering the accuracy and rigor of legal fact-finding, because the exclusion of flawed science will only increase the importance of the even more flawed non-science that now dominates legal fact-finding. And thus the example of neuroscience-based lie detection, while timely and important in its own right, is even more valuable as a case study suggesting that Daubert v. Merrill-Dow Pharmaceuticals may have sent the legal system down a false path. By inappropriately importing scientific standards into legal decision-making with little modification, Daubert confused the goals of science with those of law, a mistake that it is not too late for the courts to correct.
Abstract: Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.
Abstract: The Supreme Court has been criticized for taking and deciding too few cases, with its current full opinion output down to 70 cases a year from 150 or more as recently as the middle of the 1980s. Much of the criticism has centered around the Court’s reluctance to decide important cases, but sorting out the criticism depends on an understanding of what we mean by “important.” It is true that the Court decides very few of the important issues of our time, and the distance between the Court’s docket and current concerns about health care, jobs, the economy in general, bank bailouts, auto company bailouts, executive compensation, wars in Iraq and Afghanistan, and the nuclear capability of Iran and North Korea underscore this gap. Current public opinion polling updating Schauer, “Foreword: The Court’s Agenda - and the Nation’s,” 120 Harv. L. Rev. 4 (2006), confirms that there is no change in the gap between the two agendas, and little suggests that there is anything wrong with this. But if we turn from the question of social and political importance to legal importance, it appears that the Court is failing to resolve many of the issues that appear with great frequency in the lower courts, and as to which the law is highly uncertain. The Court’s increasing failure to adequately perform the function of guiding the lower courts is indeed a problem, a problem caused in part by the lack of a way for the Court systematically to obtain accurate information about the array of often-litigated issues in need of resolution. The Essay concludes with possible suggestions on how the informational deficit and informational distortion might be corrected.
supreme court, case selection, certiorari, docket
Abstract: In modern jurisprudence it is taken as axiomatic that John Austin’s sanction-based account of law and legal obligation demolished in H.L.A. Hart’s The Concept of Law, but Hart’s victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart’s claims, as well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law’s coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish.
Abstract: In PGA Tour, Inc. v. Casey Martin, the Supreme Court of the United States upheld the right of the professional golfer Casey Martin to use a golf cart while playing in professional golf tournaments, despite the PGA rule requiring walking. In concluding that the Americans With Disabilities Act required such an accommodation to Martin, who has a serious circulatory disorder, the Supreme Court, by the specific words of the Act, was required to determine that the accommodation did not "fundamentally alter" the nature of the activity. Yet in determining that riding rather than walking did not fundamentally alter the nature of professional tournament golf, the Court was required to make determinations as to which it had little information and even less expertise. In this respect, however, the case was more typical than unusual, for increasingly the appellate courts are compelled to get their own information and expertise in a relatively unconstrained manner. Whether such dabbling well outside of any plausible domain of judicial comparative advantage is desirable, however, presents an important issue of judicial policy that the Court's confident assertions about golf expertise did more to obscure than illuminate.
Abstract: Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making only in the context of particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.
Abstract: From 1938 to 1940 Karl Llewellyn worked on and substantially completed a book-length manuscript entitled The Theory of Rules. With the book almost completed, Llewellyn turned to other things, primarily his work on law and anthropology and his efforts relating to the Uniform Commercial Code. The book on rules remained uncompleted at his death, and is now to be published by the University of Chicago Press in 2010, edited and with an Introduction by Frederick Schauer, David and Mary Harrison Distinguished Professor of Law at the University of Virginia. The Introduction situates The Theory of Rules within the corpus of Llewellyn’s work, within the Legal Realist perspective on legal rules, and within the jurisprudential and philosophical literature on rules in general.
Abstract: In most modern legal systems, legal rules are widely understood as defeasible, in the sense that the prescriptions of the legal rule may legitimately be overridden or otherwise cancelled when those prescriptions appear to generate substantially erroneous results. As a result, it is common for commentators, including H.L.A. Hart and Richard Posner, to treat the defeasibility of legal rules as an essential feature of rules or an essential feature of law. But defeasibility is in important ways in tension with the goals of the rule of law, and so although there may be good reasons for a legal system to treat some or all of its rules as defeasible, there are also good reasons for refusing to do so. And so long as this is the case, it is a mistake to treat legal defeasibility as essential to law, for doing so both makes a mistake about the nature of law and deprives institutional designers of the advantages that may sometimes come from non-defeasible rules.
Abstract: It is commonly thought that the United States is a highly legalistic nation, and as a result it is commonly thought as well that official disobedience of law is publicly and politically disfavored. Yet when we look at numerous contemporary and not-so-contemporary examples, we discover that public and political condemnation of officials who violate the law is so closely linked to condemnation of the underlying substance of the act that it is not clear whether breaking the law qua breaking the law is very much subject to public or political sanction at all. When officials break the law in the service of what are taken to be good ends, the violation of law is rarely taken to justify condemnation in the court of public opinion or punishment at the ballot box. And if this is so, then not only is official violation of the law not nearly as disfavored as is ordinarily supposed, but we have also created a climate of politics and public opinion that does little to discourage officials from treating the violation of law as substantially irrelevant to their policy and political decisions.
Abstract: For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate asks whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we step into this debate, but not to come down on one side or another, all things considered. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. Two cornerstone concepts of behavioral decision – the availability heuristic and related problems of representativeness – explain this bias. This problem is virtually inevitable in regulation by litigation, yet it is commonly found as well in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the net advantages of regulation by ex ante rule-making against those of regulation by litigation, society must recognize that any regulatory form is less effective insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.Institutional subscribers to the NBER working paper series, and residents of developing countries may download this paper without additional charge at www.nber.org.
Abstract: For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate is about whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we enter the debate, but not to come down on one side or another, all things considered, of the litigation versus ex ante rule-making regulatory debate. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, because of the availability heuristic and related problems of representativeness, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. And although this problem is virtually inevitable in regulation by litigation, it is far from absent even in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the value of regulation by ex ante rule-making against the value of regulation by litigation, it is important for society to recognize that any regulatory form is less effective just insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.
regulation, rule-making, litigation, availability
Abstract: A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as the non-American birth of President Obama, the prior knowledge of President Bush of the September 11 attacks, the intentional creation of AIDS by physicians and pharmaceutical companies, the non-existence of the Holocaust, and the predictive accuracy of astrology. Yet although this phenomenon is a serious problem for public discourse, it is one that the First Amendment tradition fails to address. In relying on the implausible epistemic claims of “marketplace of ideas” and “search for truth” rationales for freedom of speech, the First Amendment tradition is embarrassed by the way in which falsity thrives even under conditions of widespread freedom of speech. Moreover, a close look at the landmarks of the free speech literature from Milton’s Areopagitica to the present shows that the problem of factual falsity was simply not the concern of those who created and fostered our free speech tradition. This is not to say that widespread government regulation of non-commercial factual falsity is wise or constitutionally permissible. It is to say, however, that making progress against the problem of public falsity will require recognizing that free speech doctrine and principles are only a small corner of a wise communications policy, and that such a policy will attempt to deal with widespread factual falsity in ways that the free speech tradition cannot.
Abstract: Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we think of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are not committing either historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.
Abstract: Technological changes have made access to non-legal information such as newspaper reports and general interest books far less costly. As expected, this has increased the citation to such materials, not only absolutely but as a proportion of citations generally and of secondary citations. We document this change through analyses of citation to nonlegal information in the Supreme Court of the United States, in the Supreme Court of New Jersey, and in selected other courts. The increase in the citation in nonlegal information is only explainable by a decrease in the cost of access to such information that is greater than the decreased cost for access to other sorts of information traditionally relied on by lawyers, judges, and law clerks. If this trend continues and signals a change in acceptable authority, it may foreshadow the decreased dominance of the traditional canon of legal information, which may, in turn, produce the phenomenon we call the "delegalization" of law.
Abstract: A long tradition, exemplified by both the American and Scandinavian Realists, has viewed rights in particularistic terms, seeing rights not only as the labels attached to results reached on other grounds, but also seeing legal rights as emerging from particular decisions in particular cases. Yet despite the distinguished provenance of the view that rights are necessarily particular, the view is mistaken. Rights, properly understood, have an essentially rule-like character, and are thus necessarily general encompassing actors and events other than the ones who prevail in particular cases. And once we see that rights are necessarily general, we can appreciate that the generality of rights serves to bind together the otherwise disparate holders of the same right. In this way, rights, precisely because of their generality, often serve culturally important affinity- and community-creating functions.
Abstract: Although there are numerous discussions of internet privacy issues, almost all of them view the internet as the only relevant variable. This paper argues that the internet may affect our conception of privacy as well. More specifically, the traditional conceptions of the issue maintain that the internet may affect privacy issues by increasing the quantity and ease of invasions of privacy, or by making forms of privacy invasion possible that were previously unimaginable. Yet privacy itself is, as the Supreme Court has put it, a matter of "reasonable expectations," and the internet and related developments may dramatically change our conception of what is public and what is private. Unless we realize that the internet changes our expectations of privacy, and makes much of life more public, we will not be able to understand the way the internet changes our conception of privacy as much, if not more than, it changes the way in which privacy might be invaded.
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