Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Tuesday, May 31, 2005
Book Announcement: Rossi on Regulatory Bargaining and Public Law
Smith on Disowning Our Past Steven Douglas Smith (University of San Diego School of Law) has posted Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past? on SSRN. Here is the abstract:
Kamisar on Dickerson Yale Kamisar (University of San Diego - School of Law) has posted Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters on SSRN. Here is the abstract:
Galle on Independent Executive Authority to Interpret the Constitution Brian Galle has posted The Justice of Administration: Judicial Responses to Executive Claims of Independent Authority to Interpret the Constitution on SSRN. Here is the abstract:
Book Announcement: Economics for Lawyers
Call for Papers: Ancient Philosophy in the Contemporary World
Monday, May 30, 2005
Onwuachi-Willig on the "Marriage Cure" Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted The Return of the Ring (California Law Review, Vol. 93, 2005) on SSRN. Here is the abstract:
Matasar on the Fall of American Legal Education Richard Allan Matasar (New York Law School) has posted The Rise and Fall of American Legal Education (New York Law School Law Review, Vol. 49 No. 2, 2004-2005) on SSRN. Here is the abstract:
Lieberman on Bad Writing Jethro Lieberman (New York Law School - Law) has posted Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetroic (New York Law School Law Review, Vol. 49, pp. 649-664, 2004-2005) on SSRN. Here is the abstract:
Garnett on Charitable Choice and Discrimination Check out Rick Garnett's response to The "Charitable Choice" Bill That was Recently Passed by the House By Vik Amar & Alan Brownstein.
Sunday, May 29, 2005
Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law
As always, this entry in the Legal Theory Lexicon series is aimed at law students, especially first-year law students with an interest in legal theory.
Who Cares About Terminology Why should we care about terminology? Who cares what goes under the label “jurisprudence” or “philosophy of law” or “legal theory”? Well, of course, there is a sense in which we shouldn’t care at all. What matters in a deep way is the substance of theorizing about law. On the other hand, these labels are important for a different reason—because their use tells us something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “turf” and “authority.”
Disciplinary Lines and Theorizing About Law Very broadly speaking, the turf of high-level legal theory is disputed by at least four groups. First and (still) foremost are the academic lawyers, those whose graduate-level training is exclusively (or almost exclusively) in law as it is taught in the legal academy. Second, there are the economists—some of whom are primarily (or exclusively) trained in economics; while others legal economists were trained primarily by law professors. Third, there is the “law and society” movement—broadly defined as the study of law from a social science (but noneconomic) perspective. Law-and-society theorists may have been trained in political science or sociology or criminology, but many may have been trained in the legal academy as well. Fourth, there is the law-and-philosophy movement, with “analytic legal philosophy” as the focal point of a variety of philosophical approaches. Many philosophers of law have formal philosophical training, but some were trained in law or political theory.
So, what about the turf wars? Those who use the phrase “philosophy of law” tend to be philosophers, while the term “jurisprudence” is more strongly associated with the legal tradition of theorizing about the law, but there is frequently a blurring of the these two terms. From the 1960s on, a single figure had a dominant influence in defining the content of “philosophy of law” courses in philosophy departments and “jurisprudence” courses in the law schools—that figure was H.L.A. Hart. Of course, there were many, many exceptions, but for quite a long time the standard course in both disciplines included as a central, organizing component, an examination of Hart’s ideas, either The Concept of Law, Hart’s great book, or the Hart-Fuller debate in the Harvard Law Review. When I was a student in the 70s and early 80s, I thought that “jurisprudence” and “philosophy of law” were synonymous—and that both were references to analytic philosophy of law in the tradition of Hart and included figures like Dworkin and Raz. One consequence of the “philosophicalization” of jurisprudence was the move to fold moral and political philosophy into jurisprudence. I have a very clear memory of browsing the law shelves of the textbook section of the UCLA bookstore in the late 70s, and discovery John Rawls’s A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia as the texts for the jurisprudence course. I have always assumed that similar courses were offered elsewhere, although I could be wrong about that.
Philosophy is important as a matter of the sociology of the legal academy, but it is not the only important interdisciplinary influence: economics, political science, and sociology, each of these also has a major influence. Given that the “jurisprudence” course was “captured” by philosophers, how could these other approaches to legal theorizing express their theoretical framework in the law school curriculum. One mode of expression was the alternative theory course—“Law and Economics” and “Law and Society” were the two leading competitors of “Jurisprudence.” Moreover, the tradition of distinctively legal thinking about high legal theory has never died out. American Legal Realism was largely the product of the law schools—although many other disciplines figured in the realist movement. Likewise, Critical Legal Studies was largely a phenomenon of the legal academy. Some jurisprudence or legal theory courses incorporate philosophy of law, law and economics, and law and society into a course that is taught from a distinctively legal point of view.
What can we say about our three terms—jurisprudence, philosophy of law, and legal theory?
Jurisprudence My sense is that most Anglo-American legal academics view “jurisprudence” as mostly synonymous with “philosophy of law”. This is not a unanimous view. There is still a lingering sense of “jurisprudence” that encompasses high legal theory of a nonphilosophical sort—the elucidation of legal concepts and normative theory from within the discipline of law. Moreover, in other legal cultures, for example, in Europe and Latin America, my sense is that the move to identify jurisprudence with philosophy of law never really took root.
Philosophy of Law The meaning of the phrase “philosophy of law” is inevitably tied up in the relationship between the two academic disciplines—philosophy and law. In the United States and the rest of the Anglophone world, “philosophy of law” is a subdiscipline of philosophy, a special branch of what is nowadays frequently called “normative theory.” Of course, there are many different tendencies within academic philosophy generally and the philosophy of law in particular. Still, the dominant approach to philosophy of law in the Anglophone world is represented by “analytic legal philosophy,” which might be defined by the Hart-Dworkin-Raz tradition on the one hand and by the larger Austin-Wittgenstein-Quine-Donaldson-Kripke tradition on the other.
Coexisting with the analytic tradition in the philosophy of law are many other philosophical approaches. These include Hegelianism, neo-Thomism, Marxism, as well as the contemporary continental philosophical tradition, ranging from Habermas (with close affinities to the analytic tradition) to Foucault and Derrida (with much more tenuous links).
The philosophy of law covers a lot of ground. An important line of development focuses on the “what is law?” question, but much contemporary legal philosophy is focused on normative questions in specific doctrinal fields. The application of moral and political philosophy to questions in tort and criminal law is an example of this branch of contemporary legal philosophy.
Legal Theory Legal theory is a much broader and encompassing term, encompassing the philosophy of law and jurisprudence as well as theorizing from a variety of other perspectives, including law and economics and the law and society movement. In my opinion, “legal theory” is currently the best neutral term for referring to legal theorizing, broadly understood. It allows us to avoid the turf wars and sectarian disputes that make the word “jurisprudence” somewhat problematic.
Conclusion When you start theorizing about law, you are likely to adopt some term or phrase to describe your activity. “I’m doing jurisprudence,” or “I’m a philosopher of law.” I hope that this entry in the Legal Theory Lexicon will help you use these labels with some awareness of their history and the controversies that surround their use.
Saturday, May 28, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends a pair of books, Transformation of American Law, 1780-1860 and The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy, both by Morton J. Horwitz. Here´s a blurb:
Download of the Week The Download of the Week is The Perils of Pervasive Legal Instrumentalism by Brian Z. Tamanaha. I love this paper! Here is the abstract:
Conference Announcement: The Unity of Reason at St. Andrews
Journal Announcement: New Issue of the Yale Law Journal
Friday, May 27, 2005
Blogging from Granada, Part Three It’s Friday morning in Granada, and I’m sitting in a mostly empty (and huge) auditorium. William Twining, Professor Emeritus at University College, London, is this morning’s speaker, and his talk is entitled “General Jurisprudence and Globalization.” Twining has a distinctive voice among legal theorists; he does legal theory that is high level, abstract, and interesting, but from a distinctively “legal” perspective—bucking the trend towards interdisciplinarity that dominates the American legal academy. I find Twining’s work to be stimulating and refreshing, so I am looking forward to this talk.
Twining begins. His aim, he says, is to revive a “general jurisprudence” for a globalized society. Anglo-American jurisprudence, he suggests, has been “parochial.” But his perspective is itself parochial—reflecting his own immersion in the Angle-American tradition. Jurisprudence is theorizing about the law that is ideological in the nonpejorative sense—linking views about law to the rest of our views about the world. Jurisprudence has a crucial role in the development of law as a healthy discipline. The heritage of Anglo American jurisprudence is parochial in three ways: 1) it has been done within the western legal tradition, 2) it is focused almost exclusively on state law and ignores other forms of law, including religious and transnational systems of legal ordering, and 3) the agenda of Anglo-American jurisprudence is quite limited, ignoring many important issues. The central argument of the paper is that law is becoming more cosmopolitan and jurisprudence needs to face this.
Globalization challenges some of the basic assumptions of contemporary Anglo-American jurisprudence. Twining says he teaches a course on globalization, and in his course, he bans the “G-words,” references to global and globalization, unless the words are justified and defined clearly. He does this because there is a tendency to overuse the word globalization, and to ignore the difference between truly global phenomena and other transnational spheres. Much of transnational law is not global. The global perspective can actually encourage bad theorizing, that seeks to universal phenomena that are actually not universal. He suggests that although theories like Brian Tamanaha’s are valuable, there is a need for more data-driven.
General jurisprudence has a number of different meanings. Twining’s list includes, for example, general as “universal” and general as “abstract.” So if we talk about general jurisprudence, we need to be clear about what we mean. A central issue of a general jurisprudence should be: how useful is it to generalize across different legal cultures. Generality and particularity are relative. A general jurisprudence need not be a “universal” jurisprudence.
Jurisprudence, legal theory, and socio-legal studies have similar but not identical meanings. Some questions, e.g., theories of justice, belong to philosophy of law. Other questions, e.g. the difference between questions of law and fact, are not topics on which philosophers have any special expertise. Twining then discusses the tendency to assimilate jurisprudence and philosophy of law. Brian Leiter, for example, argued that no American legal theorist (Holmes, Pound, etc.) has made a significant contribution to philosophy. Twining maintains that not all of the issues that are important to legal theory are philosophically interesting. The revival of contact between analytic philosophy and jurisprudence inaugurated by H.L.A. Hart has had important beneficial effects. But there has been a growing sense of dissatisfaction with philosophy of law. Two common complaints: (1) legal philosophy has become too detached from legal practice, and (2) legal philosophy is too narrow.
Charges of narrowness can mean several different things. One point is that legal philosophy has been isolated from socio-legal studies and ignored the realist turn to looking at law in action. The method of conceptual analysis, nonetheless, can be useful to socio-legal studies.
Many have argued that legal doctrine needs to be understood in context. Socio-legal studies and analytic jurisprudence have been mutually antagonistic, but recently there are signs of reconciliation. Brian Tamanaha’s use of Hart has been especially important in this regard.
Recently, there have been arguments in favor of a broad conception of law that includes non-state law. This goes beyond the assumption that there are only two kinds of law: municipal and international. The picture of law that focuses only on these two kinds of law is too narrow—it omits religious law, like Islamic Law, for example. Yet these forms of law are important to understanding law in a global context.
Several serious thinkers, including Tamanaha and Glenn, have made the case for taking non-state law seriously. Twining’s paper discusses this in more detail, but he says he will omit those arguments from his oral presentation.
The central point of taking non-state law into account is that they are crucial for understanding legal phenomenon. He suggests that a “master plan” is not appropriate, but he does offer some examples of what a cosmopolitan theory might be like.
Dennis Patterson asks a question: If you believe that the business of philosophy is defining the necessary and sufficient conditions for the application of concepts, then philosophy is the master discipline and there is no room for sociology. But if you believe that metaphysics and conceptual analysis are dead (along the lines suggested by Brian Leiter), then there is no room for philosophy. Is there any middle ground? Twining expresses some skepticism about Leiter’s Quinean naturalism and suggests that Nicola’s Lacey’s work offers a better model. Lacey suggests that questions like judge’s conceptions of their role, modes of institutionalization, and so forth must be taken into account. Twining suggests that he is after a middle ground, but that he does not need a controversial philosophical theory to get it.
The questions continue, but I am not putting down my pen—or rather, powering down my laptop for now! It was a provocative session that I very much enjoyed.
Thursday, May 26, 2005
Formalism and Systems Theory Check out A Defense of Formalism from a Systems Theory Point of View over at Law and Society Weblog. Here´s a taste:
New from Law & Politics Book Review
CATASTROPHE: RISK AND RESPONSE, by Richard A. Posner. New York; Oxford University Press, 2004. 336pp. Hardback. £16.99/$28.00. ISBN: 0-19-517813-0. Reviewed by Stephen Meinhold.
HOW LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS, by Jean Stefancic and Richard Delgado. Durham: Duke University Press, 2005. 152pp. Cloth. $69.95. ISBN: 0-8223-3454-2. Paper. $19.95. ISBN: 0-8223-3563-8. Reviewed by Patrick Schmidt.
THE SUPREME COURT: A CONCISE HISTORY, by Robert W. Langran. New York: Peter Lang, 2004. 149pp. Cloth. €56.00 / £40.00 / $55.95. ISBN: 0-8204-7109-7. Paper. €23.00 / £17.00 / $22.95. ISBN: 0-8204-6162-8. Reviewed by Samuel B. Hoff.
SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES, by Michael Comiskey. Lawrence: University Press of Kansas, 2004. 256pp. Cloth. $40.00. ISBN: 0-7006-1346-3. Paper. $17.95. ISBN: 0-7006-1347-1. Reviewed by Kevin J. McMahon.
Book Announcement: Straightforward by Ayres & Brown
Journal Announcement: New Issue of Theoretical Inquiries in Law
Tom Bell on the US News Rankings Tom Bell has reverse engineered the U.S. News & World Report ranking system. Take a look at this post and this one.
Wednesday, May 25, 2005
More on Formalism and Instrumentalism Check out this post at Law and Society Blog. Here´s a taste:
Blogging from Granada, Part Two The second speaker is David Held, whose lecture is entitled, “Principles of Cosmopolitan Order.” He begins with the usual words of appreciation. He then says that he will defend radical democratic cosmopolitanism, Habermas in the middle, and skeptical Westphalianism. Held says that his recent work has focused on globalization, and he now will talk about the principles underlying cosmopolitanism. He says cosmopolitanism is concerned with the “ethical, cultural, and legal basis” of political order in a world in which nation states are still important, but not exclusively. The are not ontologically privileged. States can be judges by their success or failure. States have failed spectacularly.
Held then discusses the Stoic and Kantian roots of cosmopolitanism. The Stoics referred to themselves as “cosmopolitan.” Stoics sought to replace the polis with the cosmos. Humans live both in a local community and a wider community of ideals and aspirations. The second account of cosmopolitanism is found in the Kant’s writings. Kant believed that enlightenment required the free use of public reason and that a right of participation in a cosmopolitan order is required by the idea of unrestrained dialogue.
Held then outlines eight principles of cosmopolitanism:
2. active agency,
3. personal responsibility and accountability,
5. collective decision-making about public matters through voting procedures,
6. inclusiveness and subsidiarity,
7. avoidance of serious harm,
Can a bridge be built between individual will and the general will? Cosmopolitan political philosophy does not deny the significance of diversity or the impossibility of unanimity. Cosmopolitanism takes difference seriously & talks about how it can be accommodated.
Held then discusses thick and thin cosmopolitanism. The thick version requires equal concern for all. The thin version limits the scope of equal concern to certain issues. The meaning of the eight principles needs to be worked out. Held calls his perspective “layered.” This approach builds on principles that all might agree to. We start with ideas like equal respect, but specify their meaning through national and transnational public debate.
Where do the principles come from? How are they justified? They are not self-justified. We should distinguish the origins and their justification. The principles are dependent on two metaprinciples: (1) autonomy and (2) impartialist reasoning. Autonomy is at the core—a political, not metaphysical idea, in Rawls’s sense. It builds on the idea of the citizen as a free and equal person. Autonomy is the core of the idea of democratic citizenship and the basis for the idea of consent and self-determination. The meta principle of autonomy is the basis of the first seven principles. The language of autonomy generates a commitment to the idea that all persons should be equally free—with equal liberty to pursue interests without undue interference. There are certain languages the nurture equality dignity and others that seek to ignore it.
Testing the generalizability of claims and interests involves “reasoning from the point of view of others.” The impartiality thesis says that the court of appeal for judging moral standards is one of which no particular individual or group has special standards. A number of particular tests can be used. Are all points of view considered? Would the outcome be accepted irrespective of social position? This does not result in a simple deductive proof. Rather it is a heuristic for testing candidate principles of morality. The tests are concerned with “reasonable rejectability”—always testable in dialogue.
Impartialist reasoning is a basis for disclosing non-generalizable principles. Principles of deception or coercion cannot meet the test of impartiality.
Impartialist reasoning has a decisive critical role. Something more positive can be set out. It can be argued that individual collective social arrangements that generate serious harm—unmet needs—cannot be justified impartially.
Together autonomy and impartialist reasoning provide the grounds of cosmopolitan thought. The first gives us the individual as the subject of cosmopolitan concern. It provides us reasons to help establish agreement on reasonable terms. The second abstracts from power relationships to disclose the conditions of just cooperation.
Cosmopolitan law refers to a domain of law different in kind from the law of states. Kant interpreted it as the basis for articulating the equality of persons in a universal community. Kant’s right to be heard in dialogue is power. Held understands it more broadly. Cosmopolitan law entrenches the eight principles. If they were entrenched as the basis of cosmopolitan law, the conditions of the cosmopolitan regulation of public life could be set down.
We have taken some steps, e.g. the UN declaration, but this is currently weak. The post-45 world order is at stake again, in the rise of the hegemonic project. That project, says Held, is both illegitimate and a failure. Held argues that “realism” is the new fantasy. Realism does not take into account interdependence. Cosmopolitanism is the new realism—the practical way to address the new global problems.
Current practice suggests a model for global citizenship. Individuals can be citizens of local, national, and regional associations—e.g., citizen of Scotland, the UK, and the EU. This points towards the state “withering away.” In a world of overlapping communities of fate, individuals would be citizens of local communities and regional and global networks. This would embrace the diverse forms of power and authority that already transcend national borders. Cosmopolitanism is the basis in political philosophy for living in a global age.
Held was remarkably clear and lucid—an excellent talk.
Blogging from Granada, Part One It’s Monday morning in Granada, Spain. I’m sitting through the tradition opening ceremonies of the World Congress for the Philosophy of Law and Social Philosophy—the biannual meeting of IVR and, for better or worse, the only real worldwide forum for high legal theory and legal philosophy.
The first substantive speaker this morning will be Jürgen Habermas—the great German political philosopher and social theorist. I first encountered Habermas’s work as a student in the 70s: I remember devouring several of his early books—thirty years later I still can do a fair job or recapitulating the arguments of Legitimation Crisis & Knowledge and Human Interest—and when I was a law student I wrote a paper for Gunter Frankenberg that developed a theory of the freedom of expression from Habermas’s Theory of Communicative Action. In the 1990s, Habermas became intensely interested in legal theory—writing a largish volume on legal theory. Today, Habermas’s topic is “The Kantian Project of the Constitutionalization of International Law, Does it Still Have a Chance?”.
The speeches have come to an end—finally!
Jürgen Habermas takes the stage. I’ve seen Habermas speak only a few times, at Harvard University when he visited Rawls’s political philosophy seminar in the early 80s, at a world Congress in Bologna a few years ago, and most recently at the University of San Diego, where Habermas gave a lecture as part of the Kyoto Prize activities. Habermas is a notoriously difficult speaker to understand—he has a mild speech impediment and, although the substance of his English is superb, his delivery is not entirely fluent. Despite this, Habermas has a commanding presence—won through the force of intellect and ideas—and audiences are always transfixed even if they are also perplexed. As always, these are just my notes—which record my impressions and not the actual text of Habermas’s talk.
He begins by briefly reviewing the history of the United Nations and then mentions the recent efforts to reform the UN. Then Habermas turns to Kant and introduces Kant’s idea of a ‘cosmopolitan condition’ which Habermas identifies as a step beyond international law, which is concerned only with nation-states. Kant conceived of a choice between “world republic” or “commonwealth of nations.” That is, Kant thought there were only two alternatives for international order—nation states with minimal international law or world government. (Habermas is going to try to show that there is a third way—involving international order that is more substantial than that posited by Westphalian realism but short of world government.) Habermas turns to the modern ideas that allow us to see that Kant’s two choices are not the only ones. We can now see the assumptions that underlay his conception of the choice. First, we now have the idea of federalism or “divided sovereignty.” Second, whereas Kant thought of a constitute as creating a government, we now have an alternative idea—a constitution that is not solely the constitution of a state. A constitution that constrains an existing state, breaking the link between a state and democratic citizenship. Third, Kant may also have based the dualism of “world republic” and “league of nations” on the improbability of a constitutional revolution. We see constitutionalization as a long term process, in which constitutional regulation emerges gradually in stages or degrees.
Habermas summarizes the three ideas: (1) federalism, (2) the new idea of a regulatory constitution, and (3) the idea of gradual constitutionalization implemented by governments rather than a popular revolutions.
Habermas then turns to a discussion of the means by which a new international constitutional order might emerge, discussing among other topics, the idea of constitutional law made at a supernational level—the EU provides a model of how this can work. States can act as “members of international organizations” and not just as the free agents of the realist theory of international order. The nation-state system recognized only one kind of entity (the “nation state”) with two kinds of policy—foreign and domestic. There are now supernational entities, such as the UN, with power to act in well-defined fields, i.e. securing peace and protecting human rights. New mechanisms for the coordination of nation states and NGOs are also emerging to do with particular issues—trade, the environment, international finance, etc. These arrangements, however, do not provide a framework for “international will formation” or the mechanism for the enforcement of international norms. With the exception of the United States, there are no viable actors to enforce such norms.
Historically, Habermas argues that with the process of decolonization, an international community of nation states arose. National states are comparatively young (on a world wide basis), and they are currently the most powerful actors in the international sphere. Nation states form regional alliances and engage in international cooperation, but these are comparatively weak. The EU has achieved the status of “laying claim” of growing into the role of global actor. But the EU will only do this if it achieves political integration that will enable it to claim democratic legitimacy.
Habermas then turns to the idea of the legitimation deficit. As international actors do more, they outgrown their sources of democratic legitimacy. Even if the UN does reform itself, this will not create the kind of connection between the UN and the nation state that would confer legitimacy. Ever since the development of international law has followed the logic of human rights, the emergence of international legal order has been more legal than political. The protection of human rights through fair procedures can be legitimate.
The neoliberal response to these problems is to see democratic legitimacy as the wrong model. Rather, legitimacy is provided by the excellence of the decision making process. The legitimacy of the international system of markets and states is presumed. This neoliberal approach has not met with democratic consensus. The shift from political mechanisms to market mechanisms would rob future generations of the ability to change these decisions.
I’ve only captured a small fraction of Habermas’s lecture (which, as usual, was a bit difficult to follow. Hopefully, we will get a published version!
Tuesday, May 24, 2005
Lawson on the Deans Check out Gary Lawson´s guest post, Deans and Judicial Independence, on the Right Coast. Here´s a taste:
Some Prelinary Thoughts on the ¨Nuclear Option¨ Compromise I´m blogging from an Internet Cafe in Granada, Spain, and just got the news about the Senate´s compromise on the Nuclear Option. I have a few preliminary thoughts. First, one effect of the compromise is to increase the power of a few moderate Republicans over the next Supreme Court nomination. Why is this true, given the fact that the number of votes required for confirmation, 51, is the same as the number of votes required to confirm, also 51? My guess is that the political costs of voting against the nuclear option are different from the costs of voting against a nominee. The former vote is fuzzier and plays better with the majority of voters; the latter vote is clear and is suicide with the Republican base. Second, the compromise reflects the discomfort of many Senators with changes in the norms of the Senate. I think two norms were in play. One norm disfavored ¨veto filibusters¨ of judicial nominees: a veto filibuster is a filibuster through the end of the term that kills a nomination. The second norm was that the rules themselves should only be changed in conformity with the rules. Although some versions of the nuclear option were rule compliant, the specific version being advocated would have involved a rule change that would have required the nuclear option in order to pass. That would have been unprecedented. That´s about all I´m capable of with severe jetlag and two classes of very fine spanish wine!
Conference Announcement: ECAP
Conference Announcement: Political Studies in Belfarst
Conference Reminder: Society for Applied Philosophy at Oxford
Monday, May 23, 2005
Tamanaha on Legal Instrumentalism Brian Z. Tamanaha (St. John's University - School of Law) has posted The Perils of Pervasive Legal Instrumentalism (Montesquieu Lecture Series, Tilburg University, Vol. 1, 2005) on SSRN. Here is the abstract:
Maroney on a Taxonomy of Law and Emotion Terry A. Maroney (NYU) has posted Law and Emotion: A Proposed Taxonomy of an Emerging Field (Law and Human Behavior, 2006) on SSRN. Here is the abstract:
Balkin on Lochner Jack Balkin has posted Wrong the Day it Was Decided: Lochner and Constitutional Historicism (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
Sunday, May 22, 2005
The Calendar & Conference Blogging I'm on my way to the XXII World Congress of Philosophy of Law and Social Philosophy--link here. The calendar will be very spotty this week--the North American workshop season is mostly over. I will make sure to get up a post on the Oxford Jurisprudence Discussion Group and I will be blogging from the World Congress. There will be a fairly long delay between this post and the next one--sometime on Monday when I arrive in London.
If you are regular reader of the Legal Theory Lexicon, there will be a new series of entries--starting with today's entry on Formalism and Instrumentalism (see immediately below) and continuing throughout the Summer.
See you in Granda!
Legal Theory Lexicon: Formalism and Instrumentalism
In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize gay sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text is not much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government—even though it is unmistakably clear that the 14th amendment applies only to the state.
But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution—discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.
In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students—especially first year law students—with an interest in legal theory.
Legal Formalism What is legal formalism? The terms “formalism” and “formalist” are thrown around quite a bit, but they turn out to be surprisingly difficult to define. In fact, many law students and even some legal academics have only a very vague notion as to what “legal formalism” really means. You may have heard something like the following
We can do better than that. Let’s begin with some of the things that scholars or judges who self-identify as formalists say:
2. Legal rules can be meaningful.
3. Legal rules can be applied to particular facts.
4. Some actions accord with meaningful legal rules; other actions do not.
5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.
Legal Instrumentalism Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.
The Realist Critique of Legal Formalism It is easy to see how realists or instrumentalists would critique legal formalism. If a formalist judge follows the plain meaning of a statute, that might lead to its application even in cases where it would be harmful and contrary to the intentions of its drafters. This is “unthinking” or “mechanical jurisprudence. Moreover, some realists argued that legal formalism was actually as sort of fraud. Judges don’t really follow the plain meaning—the argument goes. Rather, so-called formalist judges really decide on the basis of their own policy preferences and then dress up the results in the language of legal formalism. Ideology does the work; legal formalism dresses it up so that it looks pretty.
The Modern Revival of Legal Formalism Despite the sustained realist critique, legal formalism has been making a come back of late. One reason for the comeback is a realization that extreme versions of instrumentalism make it very difficult to know what the law is, in advance of a judge’s decision in a particular case. The point of hard law (determinate legal rules which draw relatively “bright lines”) is that they provide certainty, stability, and predictability to the law. Purposes provide less guidance, and different judges are likely to have different opinions about what the true purposes of the rule may be.
Political ideology has also played a role in the formalist revival. Some (but not all) formalists are especially disturbed by the results reached by the Warren and Burger Courts in prominent constitutional cases—like Roe v. Wade. Some of these critics may see legal formalism as a judicial philosophy that can rationalize the dismantling of these controversial precedents.
Conclusion The debate between formalists and realists is lively and fundamental, but frequently conducted in a fairly simplistic manner. The best advice I can give for approaching this debate is to be careful about how the conceptual territory is mapped and the terms are defined. Much of the seeming disagreement between formalists and instrumentalists flows from different conceptions of where the dividing lines lie.
Saturday, May 21, 2005
Lipshaw on Solum on Siegel Jeff Lipshaw has some interesting responses to my comments on The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel (which is the Download of the Week--see below). I've added them to the original post, either click here or scroll down to Thursday, May 19.
Paul Ricoeur The great French philosopher, Paul Ricoeur, has died at the age of 92. For a wonderful picture, visit this website. In the late 70s, I studied with Guy Wauthy, a former student of Ricoeur's and came to have an appreciation for this humane and interesting thinker. Here is a news report--I'm sure more will follow. Here's a brief excerpt:
Legal Theory Bookworm The Legal Theory Bookworm recommends Supreme Court Decision-Making: New Institutionalist Approaches edited by Cornell W. Clayton & Howard Gillman. Here is a blurb:
Download of the Week The Download of the Week is The Polymorphic Principle and the Judicial Role in Statutory Interpretation by Jonathan Siegel. Here is the abstract:
Friday, May 20, 2005
Lawrence on the Freedom of Autonomy Michael Anthony Lawrence (Michigan State University College of Law) has posted Reviving a Natural Right: The Freedom of Autonomy Amendment on SSRN. Here is the abstract:
Conkle on Indirect Funding & Establishment Daniel O. Conkle (Indiana University School of Law) has posted Indirect Funding and the Establishment Clause: Rehnquist's Triumphant Vision of Neutrality and Private Choice (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press) on SSRN. Here is the abstract: