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Abstract: "Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice.
procedure, justice, alternative dispute resolution, litigation, administrative law, due process
Abstract: Procedural Justice offers a theory of procedural fairness for civil dispute resolution. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? This Article responds to the challenge posed by the hard question of procedural justice. That theory is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. These two sections set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first theory, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second theory, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third theory, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice.
Abstract: This essay addresses the fundamental questions of Internet governance: whether and how the architecture of the Internet should affect the shape and content of legal regulation of the global network of networks. Our answer to these questions is based on the concept of layers, the fundamental architectural feature of the Internet. Our thesis is that legal regulation of the Internet should be governed by the layers principle - the law should respect the integrity of layered Internet architecture. This principle has two corollaries. The first corollary is the principle of layer separation: Internet regulation should not violate or compromise the separation between layers designed into the basic architecture of the Internet. The second corollary is the principle of minimizing layer crossing, i.e., minimize the distance between the layer at which the law aims to produce an affect and the layer directly affected by legal regulation. The essay argues that layers analysis provides a more robust conceptual framework for evaluating Internet regulations than does the end-to-end principle. The layers principle is supported by two fundamental ideas. The first idea is transparency: the fact that layer-violating regulations damage transparency combined with the fact that Internet transparency lowers the cost of innovation provides compelling support for the principle of layer separation: public Internet regulators should not violate or compromise the separation between layers designed into the basic architecture of the Internet. The second idea is fit: the fact that layer-crossing regulations result in inherent mismatch between the ends such regulations seek to promote and the means employed implies that layer-crossing regulations suffer from problems of overbreadth and underinclusion; avoidance of these problems requires Internet regulators to minimize the distance between the layer at which the law aims to produce an effect and the layer directly targeted by legal regulation. Finally, the essay provides a detailed discussion of several real or hypothetical layer-violating or layer-crossing regulations, including: (1) The Serbian internet interdiction myth, (2) Myanmar's cut-the-wire policy, (3) China's great firewall, (4) the French Yahoo case, (5) cyber-terrorism, (6) Pennsylvania's IP address-blocking child-pornography statute, (7) port blocking and peer-to-peer file sharing, and (8) the regulation of streaming video at the IP layer.
Abstract: "Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue-centered theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgment. A virtue-centered account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analyzing the virtue of justice into constituent elements. These include judicial impartiality (even-handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue-centered theory accounts for the role that virtuous practical judgment plays in the application of rules to particular fact situations. Moreover, it contends that a virtue-centered theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue-centered approach best accounts for the practice of equity, departure from the rules based on the judge's appreciation of the particular characteristics of individual fact situations.
Abstract: "Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. This essay begins by comparing the situation of legal theory today to the condition of ethics a few decades ago when Elizabeth Anscombe wrote her famous essay "Modern Moral Philosophy." The paper then sketches the general contours of virtue jurisprudence, including (1) the use of virtue theory to determine the aim of legislation as the promotion of virtue, (2) the use of virtue ethics as the basis for theories of legal ethics, (3) the development of a virtue-based theory of the nature of law. The main focus of the paper is the development of a virtue-centered theory of judging. This normative and explanatory theory rivals the accounts provided by law as integrity (Ronald Dworkin) and welfarism (normative law and economics). The exposition of the theory begins with exploration of defects in judicial character such as corruption and incompetence. Next, an account of judicial virtue is introduced. The judicial virtues include judicial courage, judicial temperance, judicial temperament, judicial intelligence, and judicial wisdom. The final virtue on this list, judicial wisdom, is a form of phronesis or sound practical judgment. This virtue is illustrated by contrasting the United States Supreme Court's approach to free speech by attorneys with the approach taken by the California Supreme Court. A virtue-centered account of justice is defended against the argument advanced by Bernard Williams that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analyzing the virtue of justice into constituent elements. These elements include judicial impartiality (evenhanded sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The resulting virtue-centered theory of judging is then supported in two contexts. In the first context, justice as lawfulness, it is shown that a virtue-centered theory accounts for the role that virtuous practical judgment plays in the application of rules to particular fact situations. The clearly-erroneous standard of appellate review is used to illustrate this claim. Moreover, the essay argues that a virtue-centered theory of judging can best account for the phenomenon of lawful judicial disagreement. In the second context, justice as fairness, a virtue-centered approach best accounts for the practice of equity, departure from the rules based on the judge's appreciation of the particular characteristics of individual fact situations.
Abstract: In one of the most influential articles in contemporary practical jurisprudence, Justice Antonin Scalia of the United States Supreme Court advances the thesis that the rule of law requires a law of rules. Scalia argues that rule-of-law values favor general rules over all-of-the-circumstances balancing tests as a tool for the elaboration of legal norms in a common-law system. There are two conceptual problems with the thesis that the rule of law requires a law of rules. The first is the problem of social practice. This problem is based on the idea that the same legal forms can take on quite different meanings when embedded in different social contexts. The second problem is the problem of character. This problem is based on the idea that legal actors, e.g., judges or lawyers, have forms of discretion that cannot be directly controlled by legal forms. The rule of law does not require a law of rules; nor does a law of rules guarantee the rule of law. Rather, the rule of law requires sound practical judgment by judges of integrity.
Abstract: Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act. Napster begat Napster. We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away. In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights. Neil Netanel, William Fisher, and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time. Mark Lemley is debunking ex post justifications for intellectual property. No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the Induce Act, targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content. No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred's failed challenge to the CTEA's retroactive twenty-year extension of copyright terms - effectively a twenty-year moratorium on new works entering the public domain. In Free Culture, Lessig has remade himself as a norm entrepreneur - a public figure with the towering ambition of reshaping copynorms - the fundamental set of social norms that shape perceptions of the morality of filesharing and the legitimacy of legislation that shrinks the public domain. This essay examines the ideas in Free Culture in the context of current controversies over the future of copyright.
copyright, intellectual property, norm, copynorm, copyfight, peer to peer, filesharing, Eldred
Abstract: Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis.
The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and ratified: subsequent changes in linguistic practice cannot change the semantic content of an utterance.
The clause meaning thesis claims that the semantic content is given by the conventional semantic meaning (or original public meaning) of the text with four modifications. The first modification is provided by the publicly available context of constitutional utterance: words and phrases that might be ambiguous in isolation can become clear in light of those circumstances of framing and ratification that could be expected to known to interpreters of the Constitution across time. The second modification is provided by the idea of the division of linguistic labor: some constitutional provisions, such as the natural born citizen clause may be terms of art, the meaning of which are fixed by the usages of experts. The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say. The fourth modification is provided by the idea of constitutional stipulations: the constitution brings into being new terms such as House of Representatives and the meaning of these terms is stipulated by the Constitution itself.
The contribution thesis asserts that the semantic content of the Constitution contributes to the law: the most plausible version of the contribution thesis is modest, claiming that the semantic content of the Constitution provides rules of constitutional law, subject to various qualifications. Our constitutional practice provides strong evidence for the modest version of the contribution thesis.
The fidelity thesis asserts that we have good reasons to affirm fidelity to constitutional law: virtuous citizens and officials are disposed to act in accord with the Constitution; right acting citizens and officials obey the constitution in normal circumstances; constitutional conformity produces good consequences. Our public political culture affirms the great value of the rule of law.
We can summarize semantic originalism as a slogan: The original public meaning of the constitution is the law and for that reason it should be respected and obeyed. The slogan recapitulates each of the claims made by semantic originalism, but it is potentially misleading because it does not clearly distinguish between the semantic claims made by the fixation and clause meaning theses, the legal claim made by the contribution thesis, and the normative claim made by the fidelity thesis.
Part I introduces the four theses. Part II is entitled An Opinionated History of Constitutional Originalism, and it provides the context for all that follows. Part III is entitled Semantic Originalism: A Theory of Constitutional Meaning, and it lays out the case for original public meaning as the best nonnormative theory of constitutional content. Part IV is entitled The Normative Implications of Semantic Originalism, and it articulates a variety of normative arguments for originalism. Part V is entitled Conclusion: Semantic Originalism and Living Constitutionalism, and it explores the broad implications of semantic originalism for living constitutionalism and the future of constitutional theory.
This draft was uploaded on November 22, 2008 and it replaces all prior versions. Two companion essays, "A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin" and "District of Columbia v. Heller and Originalism" are also available on SSRN.
consitution, Supreme Court, constitutional law, originalism, living constitutionalism, semantics, pragmatics, Grice, Magic Eight Ball, Silly Putty, Godzilla
Abstract: The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue.
aretaic, virtue, interpretation, institutionalism, constitution, virtue ethics, virtue jurisprudence
Abstract: One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Logically, the DNS is organized into Top Level Domains (such as .com), Second Level Domains (such as amazon.com), and third, fourth, and higher level domains (such as www.amazon.com). The physically infrastructure of the DNS consists of name servers, including the Root Server System which provides the information that directs name queries for each Top Level Domain to the appropriate server. ICANN is responsible for the allocation of the root and the creation or reallocation of Top Level Domains. The Root Server System and associated name space are scarce resources in the economic sense. The root servers have a finite capacity and expansion of the system is costly. The name space is scarce, because each string (or set of characters) can only be allocated to one Registry (or operator of a Top Level Domain). In addition, name service is not a public good in the economic sense, because it is possible to exclude strings from the DNS and because the allocation of a string to one firm results in the inability of other firms to use that name string. From the economic perspective, therefore, the question arises: what is the most efficient method for allocating the root resource? There are only five basic options available for allocation of the root. (1) a static root, equivalent to a decision to waste the currently unallocated capacity; (2) public interest hearings (or beauty contests); (3) lotteries; (4) a queuing mechanism; or (5) an auction. The fundamental economic question about the Domain Name System is which of these provides the most efficient mechanism for allocating the root resource? This resource allocation problem is analogous to problems raised in the telecommunications sector, where the Federal Communications Commission has a long history of attempting to allocate broadcast spectrum and the telephone number space. This experience reveals that a case-by-case allocation on the basis of ad hoc judgments about the public interest is doomed to failure, and that auctions (as opposed to lotteries or queues) provide the best mechanism for insuring that such public-trust resources find their highest and best use. Based on the telecommunications experience, the best method for ICANN to allocate new Top Level Domains would be to conduct an auction. Many auction designs are possible. One proposal is to auction a fixed number of new Top Level Domain slots each year. This proposal would both expand the root resource at a reasonable pace and insure that the slots went to their highest and best use. Public interest Top Level Domains could be allocated by another mechanism such as a lottery and their costs to ICANN could be subsidized by the proceeds of the auction.
Abstract: One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Logically, the DNS is organized into Top Level Domains (such as .com), Second Level Domains (such as amazon.com), and third, fourth, and higher level domains. The physical infrastructure of the DNS consists of name servers, including the Root Server System, which provides the information that directs name queries for each Top Level Domain to the appropriate server. ICANN is responsible for the allocation of the root and the creation or reallocation of Top Level Domains. The Root Server System and associated name space are scarce resources in the economic sense. The root servers have a finite capacity and expansion of the system is costly. The name space is scarce, because each string (or set of characters) can only be allocated to one Registry (or operator of a Top Level Domain). In addition, name service is not a public good in the economic sense, because it is possible to exclude strings from the DNS and because the allocation of a string to one firm results in the inability of other firms to use that name string. From the economic perspective, therefore, the question arises: what is the most efficient method for allocating the root resource? There are only five basic options available for allocation of the root. (1) a static root, equivalent to a decision to waste the currently unallocated capacity; (2) public interest hearings (or "beauty contests"); (3) lotteries; (4) a queuing mechanism; or (5) an auction. The fundamental economic question about the Domain Name System is which of these provides the most efficient mechanism for allocating the root resource? This resource allocation problem is analogous to problems raised in the telecommunications sector, where the Federal Communications Commission has a long history of attempting to allocate broadcast spectrum and the telephone number space. This experience reveals that a case-by-case allocation on the basis of ad hoc judgments about the public interest is doomed to failure, and that auctions (as opposed to lotteries or queues) provide the best mechanism for insuring that such public-trust resources find their highest and best use. Based on the telecommunications experience, the best method for ICANN to allocate new Top Level Domains would be to conduct an auction. Many auction designs are possible. One proposal is to auction a fixed number of new Top Level Domain slots each year. This proposal would both expand the root resource at a reasonable pace and insure that the slots went to their highest and best use. Public interest Top Level Domains could be allocated by another mechanism such as a lottery and their costs to ICANN could be subsidized by the proceeds of the auction.
Abstract: Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes - mostly off the official record of the judicial nomination and confirmation process. Perhaps the most important evidence of the new emphasis on political ideology in judicial selection is Senator Charles Schumer's op/ed Judging by Ideology, which argued for the proposition that political ideology and not character or competence should be the explicit on-the-record basis for Democratic opposition to Republican judicial nominees. Part II investigates the case for the ideological selection of judges. This investigation begins with Senator Schumer's argument for explicit consideration of political ideology in the confirmation process and then proceeds to the development of a two dimensional model of judicial attitudes. The first dimension is a simple left-right measure of political ideology. The second dimension represents judicial philosophy as a position on a continuous real line, the origin of which is perfect instrumentalism (decisions are entirely a function of ideology) and the endpoint of which is perfect formalism (decisions are entirely a function of the legal materials). Given a scenario in which Democrats can block Republican nominees (or vice versa), the simple model yields a confirmation space, defined as the set of judges whose position in the two-dimensional attitude space are acceptable to both parties. Part III presents the case for the primacy of character in judicial selection. The argument begins with the uncontroversial observation that almost every theorist of judicial decision can accept a thin theory of judicial vice. No one believes that cowardly, stupid, foolish, or corrupt characters are suitable for the position of judge. The next move is to argue that similar agreement can be reached on a thin theory of judicial virtue, the characteristics of mind and will that are necessary for excellent judging given any reasonable theory as to what constitutes a good judicial decision. Part IV moves beyond a theory of judicial virtue by investigating the particular virtue of justice. The paper argues that justice is best understood as lawfulness. A good judge is nominos; she grasps and respects the nomos, the laws, norms, and customs generally accepted by her community. Part V answers a series of objections to character-driven judicial selection. These include the objections (1) that judicial selectors lack sufficient evidence of character, (2) that there are no objective criteria for good character, (3) that character is a private matter, and (4) that selection on the basis of character is not politically feasible. In each case, the objection, while it might be apropos of some character-driven theory of judicial selection, is inapplicable to the kind of aretaic theory developed in Parts III and IV of the paper. Part V concludes by noting that when ideological struggle is intense, nonideological judging becomes all the more necessary to realize the rule of law.
judicial selection, nomination, confirmation, ideology, character, virtue, aretaic
Abstract: Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law - to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources - doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans - it is part and partial of human flourishing. All of these are natural ethical facts. "Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to Hume's famous argument about deriving ought from is, Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in Part I is the claim that there are no clearly decisive objections to existence of natural ethical facts. Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos - in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case. Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason - using social creatures in human circumstances. This part also articulates and responds to a variety of objections. Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law - the promotion of human flourishing.
virtue, jurisprudence, arete, aretaic, philosophy of law, natural, naturalism, justice, fact value, open question, is ought, Hume, G.E. Moore, Aristotle, perfectionism, natural law, positivism
Abstract: This essay advances a formalist conception of constitutional stare decisis. I shall argue that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework - a revival of formalist ideas in legal theory that I shall call "neoformalism" to distinguish my view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist"). In Part II, The Critique of Unenumerated Constitutional Rights, we set the stage by briefly recalling why the unenumerated rights precedents are under theoretical (and political) siege. Then, in Part III, Neoformalism, Stare Decisis, and the Rule of Law, we examine the jurisprudential roots of a formalist revival that would create theoretical space for the idea that the Supreme Court should regard itself as bound by precedent. In Part IV, A Neoformalist Conception of Constitutional Stare Decisis, that theoretical framework is deployed to develop the outline of a neoformalist theory of constitutional stare decisis. This conception is brought down to earth in Part V, which answers the question posed by its title: Does the Neoformalist Conception of Constitutional Stare Decisis Support Contemporary Unenumerated Rights Jurisprudence? We wrap it all up in Part VI, Unenumerated Rights and the Future of Constitutional Doctrine.
constitution, constitutional theory, precedent, stare decisis, formalism, realism, jurisprudence
Abstract: The Intellectual Property Clause of the United States Constitution grants Congress power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This essay investigates the issues raised by Eldred v. Ashcroft, in which the Supreme Court may decide whether the Copyright Term Extension Act (CTEA) exceeds Congress's authority under that clause. The essay frames the issues in Eldred v. Ashcroft by discussing the history of copyright legislation in general and the CTEA in particular and then summarizing the procedural history of Eldred v. Ashcroft. The essay then undertakes a detailed investigation of the text of the Intellectual Property Clause, with a special emphasis on the interpretation of the Clause by the first Congress and early judicial decisions. Three elements of the constitutional text have important implications for the Supreme Court's decision in Eldred. First, the Copyright Clause empowers Congress to pursue the goal of promoting the progress of science. This goal is integral to the grant of power to Congress and does not constitute a hortatory preamble. Second, the meaning of science that best coheres with the constitutional text and the original understanding can be glossed as systematic knowledge or learning of enduring value. This understanding of the meaning of "science" is confirmed by Clayton v. Stone, the earliest federal case to undertake a substantive evaluation of the meaning of the phrase "promote the progress of science." Third, if the limited times restriction is to impose a meaningful limit on Congress's power, the most plausible constructions are inconsistent with either a term of life plus seventy years or with retroactive extensions, or both. If the phrase "limited times" is construed to limit terms in relationship to the grant of exclusive rights to authors, then a grant of life plus seventy years is, in relationship to the outer limits of the productive life of authors, unlimited. If the phrase "limited times" is construed to require definite or certain terms, then the retroactive extension of terms on a wholesale basis is unlimited. Finally, the essay provides a reader's guide to the issues raised both by the parties and by scholars. Among these topics are the tier of scrutiny to be applied to congressional exercise of the copyright power, the question whether retroactive extensions of copyright terms can promote the progress of science, an analysis of the economic effects of the CTEA's extensions of copyright terms, a discussion of the "limited times" constraint in the intellectual property clause, and an investigation of the first amendment implications of the CTEA. This article and the scholarly work upon which it comments may be found in the symposium, "Eldred v. Ashcroft: Intellectual Property, Congressional Power, and the Constitution," in Volume 36 of the Loyola of Los Angeles Law Review.
Copyright Term Extension Act, Clayton v. Stone, retroactive extensions
Abstract: This Article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested laypersons worldwide.
law reviews, open access, peer-edited, blog, blogging, disintermediation
Abstract: This Essay deveopes an ideal of public legal reason - a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what I shall call public values - values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. The ideal of public legal reason is then applied to a particular question - whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no - to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that are fail the test of public reason. The Essay also investigates the thesis - advanced by Louis Kaplow and Steven Shavell - that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell's argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law's justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law's deliberations should be shallow and not deep. Law's reason should be public.
public reason, Rawls, welfarism, law and economics, pluralism, jurisprudence, law and philosophy, normative legal theory
Abstract: How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected on the basis of merit - we want judges who are excellent. But Choi and Gulati have gotten something crucial terribly wrong: the selection of judges on the basis of measurable performance criteria would lead us away from true excellence. A tournament of judges would be won by judges who possess arbitrary luck and the vices of originality and mindless productivity; a tournament of virtue would be lost by those who possess the virtues of justice and wisdom. The judicial selection process should not be transformed into a game. I begin in Part II, "What is Judicial Excellence?," by tackling the tough problem that Choi and Gulati avoid - the explication of a theory of virtue for judges. The judicial virtues include: (1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom. In Part III, "Discerning Excellence," I discuss the question as to how we can tell whether candidates for judicial office are bad, which incompetent, and which are truly excellent. Three technniques for discerning judicial excellence are discussed: (1) screening for judicial vice; (2) detection of judges who possess practical wisdom; and (3) the recognition of judges whose record reveals a respect for the law. Part IV, "The Mismeasurement of Virtue," engages the idea of quantitative measures of judicial performance as a proxy for excellence. In this section, I argue that citation rates, productivity measures, and independence - as measured by Choi and Gulati - are poor measures of true judicial excellence. A real world tournament of judges, moreover, would be gamed, leading to the selection of vicious rather than virtuous judges. Finally, Part V, "Conclusion: The Redemption of Spectacular Failure." I argue that Choi and Gulati's idea is that rare and valuable thing - an idea that is both completely wrong and wonderfully illuminating.
tournament, judicial selection, virtue jurisprudence, judicial vice, virtue, vice, practical wisdom
Abstract: What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity.
constitution, constitutional theory, constitutional amendment, constitutional convention, possibility, necessity, modality, possible worlds, path dependency, second best, feasibility, choice, decision, ideal theory
Abstract: What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: "That is unrealistic." "That's not possible." "That is pie in the sky." "You are imagining castles in the air." "Your suggestion is utopian." "That isn't feasible." These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities.
What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like "constitutional possibility," "ideal theory," and "the feasible choice set" mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality.
"Constitutional Possibilities" proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools will range from the familiar distinction between ideal and nonideal theory to a quick a dirty guide to the metaphysics of modality. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity.
constitution, constitutional theory, constitutional amendment, constitutional convention, possibility, necessity, modality, possible worlds, path dependency, second best, feasibility, choice, decision, ideal theory, nonideal theory
Abstract: In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is confirmed by the recent history of the federal judicial appointments process. We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called Gang of 14 - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.
Nuclear option, nuclear pivot, filibuster, gridlock, appointments gridlock, pivotal politics, gang of 14, gang of fourteen, krehbiel, judicial selection, judicial appointments, federal judges, appointment process, appointments process, divided government, veto players
Abstract: In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is broadly consistent with the recent history of the federal judicial appointments process. We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called Gang of 14 - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.
Abstract: On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents from Justice Stevens and Justice Breyer. Collectively, the opinions in Heller represent the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court. This Article investigates the relationship between originalist constitutional theory and judicial practice in the context of the United States Supreme Court's decision in District of Columbia v. Heller. Part I introduces Heller and the role of originalism in the opinions of the Justices. Part II contextualizes Heller by tracing the evolution of contemporary originalist theory. Part III examines the reasoning of the Heller majority and identifies the unarticulated assumptions that would be required to square the result in Heller with a fully articulated originalist theory of constitutional interpretation. Part IV examines the role of intentionalist and teleological reasoning in Justice Steven's dissenting opinion. Part V considers the implications of Heller's originalist theory for the question whether the Second Amendment will be applied to the states via the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment. Part VI considers the relationship of the Heller to the distinction between constitutional interpretation and constitutional construction that has emerged from contemporary originalist theory. Finally Part VII draws conclusions about the implications of Heller for the relationship between originalist theory and originalist practice. This is the final version of "District of Columbia v. Heller and Originalism" with pagination and citation information. The final draft version is available on SSRN as a working paper.
Abstract: On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents from Justice Stevens and Justice Breyer. Collectively, the opinions in Heller represent the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court. This Article investigates the relationship between originalist constitutional theory and judicial practice in the context of the United States Supreme Court's decision in District of Columbia v. Heller. Part I introduces Heller and the role of originalism in the opinions of the Justices. Part II contextualizes Heller by tracing the evolution of contemporary originalist theory. Part III examines the reasoning of the Heller majority and identifies the unarticulated assumptions that would be required to square the result in Heller with a fully articulated originalist theory of constitutional interpretation. Part IV examines the role of intentionalist and teleological reasoning in Justice Steven's dissenting opinion. Part V considers the implications of Heller's originalist theory for the question whether the Second Amendment will be applied to the states via the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment. Part VI considers the relationship of the Heller to the distinction between constitutional interpretation and constitutional construction that has emerged from contemporary originalist theory. Finally Part VII draws conclusions about the implications of Heller for the relationship between originalist theory and originalist practice. This version of "District of Columbia v. Heller and Originalism" was created on November 11, 2008, and it replaces all prior versions.
Abstract: Internet governance is a large, complex, and ambiguous topic. When we think about regulation of the Internet, we might be thinking about a narrow but important set of questions about specific institutions, such as the Internet Engineering Task Force (IETF) or the Internet Corporation for Assigned Names and Numbers (ICANN): these institutions can be said to govern the technical infrastructure and architecture of the Internet. We might also be thinking about a much broader and perhaps more compelling set of questions about policy issues that implicate the Internet: these questions include the regulation of online gambling, child pornography, freedom of speech, and the future of commerce and implicate nation states and international organizations. Internet governance implicates both the narrow questions about Internet infrastructure or architecture and the broad questions about regulation of applications and content. Moreover, the broad and narrow questions are related. Regulation of the technical infrastructure of the Internet has implications for the regulation of applications and content.
The approach to Internet governance in this paper is based on three central ideas: (1) the idea that the Internet is constituted by its architecture or code; (2) the idea that the problems of Internet regulation can be analyzed by using the conventional tools of policy analysis, including but not limited to: (a) normative theory, (b) economics, and (c) social choice theory; and (3) the idea that the logical space for discussing Internet governance can be captured via a set of 'models' or ideal types for Internet regulation.
The five models are: (i) The model of cyberspace and spontaneous ordering which is premised on the idea that the Internet is a self-governing realm of individual liberty, beyond the reach of government control. (ii) The model of transnational institutions and international organizations which is based on the notion that Internet governance inherently transcends national borders and hence that the most appropriate institutions are transnational quasi-private cooperatives or international organizations based on treaty arrangements between national governments. (iii) The model of code and Internet architecture which is based on the notion that many regulatory decisions are made by the communications protocols and other software that determine how the Internet operates. (iv) The model of national governments and law which is based on the idea that as the Internet grows in importance fundamental regulatory decisions will be made by national governments through legal regulation. (v) The model of market regulation and economics which assumes that market forces drive the fundamental decisions about the nature of the Internet.
Internet, ICANN, Internet Corporation for Assigned Names and Numbers, IETF, Internet Engineering Task Force, Domain Name, Internet Governance, Cyberspace, Network, Network Neutraility, TCP/IP
Abstract: Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, Kramer offers a rich and powerful interpretation of American constitutional history, exposing ideas that have long been submerged, and stimulating a fundamental reappraisal of the contemporary ascendancy of the United States Supreme Court as the ultimate and final expositor of constitutional meaning. This Review offers a critical assessment of The People Themselves. In Part II, we provide a brief recapitulation of the main themes of The People Themselves, tracing the story of popular constitutionalism from before the Revolution through the founding era to the present day. We then undertake in Part III a careful examination of Kramer's central concept by answering the question, What is popular constitutionalism? From analytic reconstruction, we move to normative assessment in Part IV, which states the case in favor of judicial supremacy and against popular constitutionalism. In Part V, we conclude this Review with observations about the paradoxical nature of Kramer's discussion of popular acceptance of judicial supremacy and an observation about the value of The People Themselves: Kramer's book makes an important contribution to constitutional theory by pushing the idea of popular constitutionalism to its limits.
constitution, popular constitutionalism, legitimacy, popular sovereignty, democracy
Abstract: Does blogging have anything to do with legal scholarship? Could blogging transform the legal academy? This paper suggests that these are the wrong questions. Blogs have plenty to do with legal scholarship - that's obvious. But what blogs have to do with legal scholarship isn't driven by anything special about blogs qua weblogs, qua collections of web pages that share the form of a journal or log. The relationship between blogging and the future of legal scholarship is a product of other forces - the emergence of the short form, the obsolesce of exclusive rights, and the trend towards the disintermediation of legal scholarship. Those forces and their relationship to blogging will be the primary focus of this paper. The transition from the "long form" to the "short form" involves movement from very long law review articles and multivolume treatises to new forms of legal scholarship, including the blog post, the idea piece, and the use of collaborative online authoring environments such as wikis. The transition from exclusive rights to open source requires publication in formats that provide full text searchability and the use of copyright to insure that scholarship can be freely downloaded and duplicated. The trend toward disintermediation reflects the diminished role of traditional intermediaries such as student and peer editorial boards and the growing role of search engines such as Google. These trends are the result of technology change and the fundamental forces that drive legal scholarship. Each of the three trends, the short form, open access, and disintermediation reduces search costs and access costs to legal scholarship. Reducing costs has other important implications, including the facilitation of the globalization of legal scholarship and the reduction of lag times between the production and full-scale dissemination of new scholarship. Each of these important trends is facilitated by blogs and blogging, but the blog or weblog is only one form that these trends can take. Blogs express and facilitate the fundamental forces that are already transforming legal scholarship in fundamental ways.
Abstract: What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism - liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism - the diversity of religious and secular conceptions of the good - can and should work as a force for constitutional consensus and that such a consensus is best realized through commitment to an ideal of public legal reason instantiated by the practice of legal formalism. The case for these claims is made in six parts. After the introduction, Part II, The Fact of Pluralism in the Context of Contemporary Religious Division, explores the idea of religious division in light of an important notion in political philosophy - the idea that John Rawls calls the fact of reasonable pluralism. Part III, Public Legal Reason, argues that the fact of pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of public legal reason. Part IV, Legal Formalism, contends that this idea is best realized in constitutional practice through a formalist approach to constitutional interpretation - one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good. Part V, Feasibility and Positive Theory, discusses the question whether this ideal of public legal reason and corresponding conception of constitutional formalism are realistic, given the constraints imposed by democratic politics under contemporary conditions. Finally, Part VI, Religious Division Revisited: From Pluralism to Formalism, brings the discussion to a close. (A previous version of the PDF file was corrupted. This version should open. If you experience a problem, please email the author.)
public reason, pluralism, Rawls, formalism, religion, toleration, free exercise, establishment, public square, overlapping consensus, jurisprudence, philosophy of law, democracy
Abstract: The Internet Corporation for Assigned Names and Numbers (ICANN) is charged with designing and implementing policies for "domain names," which function as address identifiers for computers on the Internet. Domain names can have tremendous economic value, as do the registration services that control the databases that resolve domain names into numerical Internet addresses. Economic value is partly the consequence of scarcity in the domain name space. Incumbents strive to perpetuate scarcity so as to preserve the values of their domain names and name services. ICANN has struggled to establish a coherent domain name policy, especially for generic Top Level Domains (gTLDs), for almost the entirety of its 5-year existence. In this policy paper we first present a framework for evaluating Internet domain name policy in general and gTLD policy in particular. We demonstrate that the domain name system (DNS) is what economists call a "private good" and not a "public good." We then show that, because of what economists call "networking effects," root service, the part of the domain name system that handles the TLDs, is a natural monopoly. At the first level of analysis, we establish that gTLD policy ought to take into account these two fundamental economic facts: (1) domain name service is a private good, and (2) root service is a natural monopoly created by networking effects. We next argue for a specific set of conclusions about gTLD policy. In particular, we demonstrate that there is a compelling case for allowing the market to operate in the creation of new gTLDs. This could be accomplished through a variety of mechanisms, including a rule of first occupation or through an auction. Although the creation of gTLDs should allow for the operation of market forces, it does not follow that ICANN itself should act as a profit-maximizer. Instead, we reason that, because ICANN is a non-profit corporation and because it is the trustee for a natural monopoly, ICANN ought to act in the public interest. We conclude that ICANN should structure the expansion of the root in a way that insures the stability and efficiency of root service. We offer a specific proposal for an auction of new gTLDs, and show that this approach offers substantial advantages over current domain name policy. Our conclusions are reinforced by a set of comparisons between the policy questions faced by ICANN as both a participant in and regulator of the DNS and with analogous policy questions faced by market participants and regulators in other sectors of the telecommunications system. In particular, we argue that there are important insights to be gleaned and lessons to be learned by comparing domain name service with broadcasting and telephone service.
Abstract: The purpose of this essay is two-fold. The first aim is to introduce the reader to Semantic Originalism - a version of the New Originalism that is fully articulated in a long article of that name. The reader's guide in Part II provides a very short summary and accessible guide to the argument of Semantic Originalism. The second aim is to provide access to an exchange between Stephen Griffin and myself in the Blogosphere. Griffin's eight questions and comments about Semantic Originalism and my replies are reproduced in lightly edited form in Part III. My concluding remarks about Griffin's questions included a three dimensional model of the space of theoretical argument about originalism: that model is presented in Part IV.
originalism, constitution, semantic, Stephen Griffin, Ronald Dworkin, Christopher Eisgruber
Abstract: The debate between originalists and nonoriginalists has begun to suffer a fate similar to these earlier debates in constitutional theory and practice. This essay is one of a growing number of recent attempts to look back at the originalism debate now that both the critics and defenders of originalism have stated their positions and replied to arguments of their opponents. As originalism has been modified and defined in reaction to nonoriginalist critiques, the originalist's theory has become more and more plausible as a theory of constitutional interpretation. When I say plausible as a theory of constitutional interpretation, I mean that the most sophisticated forms of originalism provide an accurate description of the phenomenology of constitutional practice. The Constitution is interpreted in light of the purposes and concerns that animated its framing and ratification. As a matter of the theory of interpretation, originalism captures an important aspect of constitutional practice. But the originalists have won a Pyrrhic victory. As originalism has been clarified in response to its critics, it has gradually become more and more evident that it has no force as a critique of constitutional interpretation as practiced by the Warren Court. Originalism has become indistinguishable from nonoriginalism. Quite to the contrary, I will argue that originalism can serve as the basis for what we might call transformative politics. This essay was originally published in 1989 and is anthologized in Gadamer and the Law (edited by Francis Mootz and published by Ashgate in 2007).
constitution, constitutional theory, originalism, Michael Perry, Gadamer, hermeneutics
Abstract: "Constitutional Texting" introduces an account of constitutional meaning that draws on Paul Grice's distinction between "speaker's meaning" and "sentence meaning." The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is "clause meaning," the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and phrases used in the Constitution have conventional semantic meanings - ordinary meanings in a natural language, English, as it was used at the various times when constitutional text was created and promulgated. The meaning of the Constitution should be understood as clause meaning. This Gricean view provides foundations for the theory that is sometimes called "original meaning originalism" or "the new originalism." This theory of constitutional meaning is developed in the context of commentary on Steven D. Smith's recent book, "Law's Quandary." Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith's view is mistaken. The meaning of the Constitution is not determined by the semantic intentions of the drafters or ratifiers; rather, the best theory of the meaning of the Constitution is based on the ordinary or technical meaning of its words and phrases as they would have been understood by the relevant audiences, citizens and lawyers, at the times particular constitutional provisions were adopted and promulgated. Part I is entitled "Introduction: Talking and Texting," and it introduces the Gricean themes of the essay in the context of "text messages" or "texting." Part II is called "Constitutional Texting" and it situates the essay in contemporary constitutional theory. Part III is "Smith," and relates the themes of the essay to Smith's book, "Law's Quandary," in the context of Paul Grice's theory of meaning. Part IV is called "Framer's Meaning and Clause Meaning" and it develops a Gricean and anti-Smithian account of constitutional meaning. Part V is "Conclusion: How to Do Things with Clauses," and it argues that successful constitutional texting requires that framers and interpreters attend to clause meaning as the meaning of the Constitution.
constitution, constitutional theory, meaning, interpretation, construction, Grice, Steven Smith, sentence meaning, speakers meaning, clause meaning, framer's meaning, originalism, original intent, original public meaning, new originalism, Whittington, Barnett
Abstract: Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation." The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that "original meaning" is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase "privileges or immunities" was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the "privileges or immunities clause" instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.
Abstract: The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law - a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.
What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning. Anyone born on American soil whose parents are citizens of the United States of American is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." John McCain's citizenship was conferred by statute - perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone - neither clearly naturalized nor natural born.
This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism - the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism - the phrase "natural born citizen" may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a "term of art," in particular, the idea that the meaning of "natural born citizen" derives from the English concept of a "natural born subject." Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory.
originalism, natural born citizen, president, presidency, constitution, constitutional theory, term of art, compositionality, original public meaning, new originalism, semantic originalism, John McCain
Abstract: This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.
The strong indeterminacy thesis is the claim that all cases are "hard" cases - or that in any case any conceivable result can be derived from existing legal doctrine. Strong indeterminacy does not hold if there are easy cases - cases in which some outcomes cannot be legally correct. For example, if it were the case that the first paragraph of this abstract did not slander Gore Vidal, then there would be at least one easy case, and strong indeterminacy would be false.
Weak versions of the indeterminacy thesis include the claim that important cases are indeterminate, that the law does not necessarily determine outcomes, or that every case could become indeterminate if political conditions supported indeterminacy. These weaker claims may be true, but they lack the critical bite associated with strong indeterminacy.
The essay also distinguishes between "determinacy," "indeterminacy," and "underdeterminacy." The law is "determinate" with respect ot a given case if and only if the set of results that can be squared with the legal materials contains only one member. The law is "indeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is identical with the set of all imaginable results. The law is "underdeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.
This article was first published in 1987, and some of the author's views have been revised in interim.
Abstract: Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate.
personhood, artificial intelligence, turing test, philosophy of mind
Abstract: The thesis of "Freedom of Communicative Action" is that Jurgen Habermas's theory of communicative action illuminated the deep structure of the First Amendment freedom of speech. Haberams's theory takes speech act theory as its point of departure. Communicative action coordinates indivudal behavior through rational understanding. Communicative action is distinguished from strategic action--the use of communication to manipulate, deceive, or coerce. Part I offers an introduction. Part II outlines a hermeneutic approach to interpretation of the First Amendent. Part III explores and criticizes existing theories of the freedom of speech. Part IV explicates Habermas's theory of communicative action. Part V developes a theory of the freedom of expression based on Habermas's theory of communication. Part VI applies that theory to particular problems in free speech doctrine. Part VII draws some conclusions about the implications of this exercise for the development of doctrine and the theory of communicative action. "Freedom of Communicative Action" was published in 1989, and some of the views expressed in the article are no longer affirmed by the author.
constitution, constitutional theory, constitutional interpretation, hermeneutics, speech act, Gadamer, Habermas, communicative action, communication, first amendment, freedom of speech, freedom of expression, free speech
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