Legal Theory Blog |
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 All the theory that fits! Home 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. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Thursday, June 30, 2005
Call for Papers: Respect
Pettit on the Many as One Philip N. Pettit (Princeton University - Department of Politics) has posted On the Many as One (Philosopy and Public Affairs, September 2005) on SSRN. Here is the abstract:
Wednesday, June 29, 2005
Read Ernest Miller on Grokster If you are interested in Grokster, you really want to read this post by Miller. Like much of Miller's work, his analysis of Grokster is very fine indeed. Very highly recommended! Grokster and the Future of P2P What are the implications of the Grokster decision for the future of P2P filesharing? Superficially, the fact that MGM prevailed in the Supreme Court might seem like a negative for P2P, I believe that quite the opposite is true. Why?
Garnett on Transportation and the Urban Poor Nicole Stelle Garnett (Notre Dame Law School) has posted The Road from Welfare to Work: Informal Transportation and the Urban Poor (Harvard Journal on Legislation, Vol. 38, No. 73, 2001) on SSRN. Here is the abstract:
Ellman on Unanimity in Brown v. Board Stephen Ellmann (New York Law School) has posted The Rule of Law and the Achievement of Unanimity in Brown (New York Law School Law Review Vol. 49, pp. 741-784, 2004-2005) on SSRN. Here is the abstract:
Stark on Globalization, Women, and the Law Barbara Stark (Hofstra) has posted Women, Globalization, and Law: A Change of World on SSRN. Here is the abstract:
Smith on Autonomy, Equality, and Voting Rights Terry Smith (Fordham University School of Law) has posted Autonomy Versus Equality: Voting Rights Rediscovered on SSRN. Here is the abstract:
Tuesday, June 28, 2005
Pearce on Inequality in the Market for Justice Russell G. Pearce (Fordham University School of Law) has posted Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help (Fordham Law Review, Vol. 73, p. 969, 2004) on SSRN. Here is the abstract:
Brodin on "Fact Verdicts" Mark S. Brodin (Boston College - Law School) has posted Accuracy, Efficiency, and Accountability in the Litigation Process - The Case for the Fact Verdict (University of Cincinnati Law Review, Vol. 59, pp. 15-111, 1990) on SSRN. Here is the abstract:
Leib on Choices About Choice Ethan Leib (Hastings) has posted Responsibility and Social/Political Choices about Choice; Or, One Way To Be a True Non-Voluntarist on SSRN. Here is the abstract:
Pettit on Contractual Morality Philip N. Pettit (Princeton University - Department of Politics) has posted Can Contract Theory Ground Morality? (MORAL THEORIES, J. Dreier, ed., Blackwell, 2005) on SSRN. Here is the abstract:
Monday, June 27, 2005
The Grokster Remand & Mandate The final paragraphs of Grokster reward a second & careful look. Here's what Souter writes:
There is substantial evidence in MGM?s favor on allbelements of inducement, and summary judgment in favorbof Grokster and StreamCast was error. On remand, reconsiderationb of MGM?s motion for summary judgmentb will be in order. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
Geidner on Volokh on Divisiveness and the Ten Commandments Cases Check out Chris Geinder's post on Law Dork. Here's a taste:
More on Footnote 12 For more on Footnote 12 of the Grokster decision, surf on over to Edward Lee's Lee Blog. Here is a taste:
Update: And for more on Footnote 12, check out Randy Picker on Picker's MobBlog with really terrific post. Footnote 12 in Grokster Because Grokster was decided on an inducement theory, the crucial question--from a practical point of view--is what constitutes sufficient evidence of inducement. In particular, is evidence of "intent" required. If so, then "legal engineering" (see post below) can circumvent liability. If not, then things would get much more interesting. So consider this passage from Justice Souter's opinion:
The Grokster Concurrences Six justices joined concurring opinions in Grokster. Ginsburg was joined by Rehnquist and Kennedy. Breyer was joined by Stevens and O'Connor. Ginsburg and Breyer disagree about the meaning of the Sony "substantial noninfring use" test, and that disagreement is potentially important to the future of P2P litigation, and hence to the future of copyright. What is the significance of these opinions? Here is a key passage from near the conclusion of Justice Ginsburg's concurrence:
Grokster: A "Legal Engineering" Failure Over at MobBlog, Doug Lichtman has a post bemoaning the legal standard for inducement adopted by the Court:
The Treatment of Sony in Grokster One of the most important issues in Grokster case is the fate of Sony, the prior Supreme Court case,in which the Supreme Court held that the Betamax (VCR) would not serve as the basis for a contributory infringement action against Sony, because it was capable of "substantial noninfringing uses." Here is what today's unanimous opinion says about Sony:
Holding in Grokster Here is the statement from Justice Souter's Opinon for a unanimous Court:
AP Story on Grokster The AP Story is out:
No Announcement on Supreme Court Retirements With the rumors flying about a possible Rehnquist (and/or O'Connor) retirement, the Court has adjourned without an announcement. Grokster Announced The result in the Grokster has been announced. The vague radio report suggested a loss for Grokster, and Scotus Blog just reports a loss as well:
Grokster Today The Grokster decision should be announced momentarily. I will be participating in a group effort on Picker MobBlog, others include Doug Lichtman, Jessica Litman, Jim Speta, Julie Cohen, Lior Strahilevitz, Phil Weiser, Randy Picker, Ray Ku, Stuart Benjamin, Tim Wu, Tom Hazlett, and Wendy Gordon. Scotus Blog will have continuing coverage. On the Docket has a collection of links, the question presented, etc. Ernest Miller has a round-up of pre-decision commentary on Corante. I'll have comments in full here, with short posts over at MobBlog. McGowan on Speech, Approximately David McGowan (University of San Diego School of Law) has posted Approximately Speech (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
Goldfarb on Ethics, Feminism, and Clinical Education Phyllis Goldfarb (Boston College - Law School) has posted A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education (Minnesota Law Review, Vol. 75, 1599-1699, 1990) on SSRN. Here is the abstract:
Borgen on Treaty Conflicts Christopher Borgen (St. John's University - School of Law) has posted Resolving Treaty Conflicts (George Washington International Law Review, Vol. 37, 2005) on SSRN. Here is the abstract:
Petit on Freedom in the Market Philip N. Pettit (Princeton University - Department of Politics) has posted Freedom in the Market (Philosophy, Politics and Economics, Forthcoming) on SSRN. Here is the abstract:
Sunday, June 26, 2005
Legal Theory Lexicon: Libertarian Theories of Law
The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go! Historical Roots of Contemporary Libertarianism One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.
John Stuart Mill and the Harm Principle John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:
There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions. Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways. In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions. Deontological Foundations Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions. In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below). Pluralist Foundations There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian. One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- have good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.
A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution. Comprehensive Libertarian Reform: The Night-Watchman State A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty. The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions. Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to private firms that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services. Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”) Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing. Conclusion Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory. Once again, this entry is bit too long, but I hope that I’ve provide a good starting point for your investigations of libertarianism. I’ve provided a very brief set of references for further exploration. References
Richard A. Epstein, Skepticism and Freedom : A Modern Case for Classical Liberalism (Chicago: University of Chicago Press, 2003). Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1977). Saturday, June 25, 2005
Legal Theory Bookworm And speaking of Philip Pettit, the Legal Theory Bookworm recommends Republicanism: A Theory of Freedom and Government by Philip Pettit. The short-lived "republican revival" in American constitutional theory was what spurred by interest in this very rewarding book. Here's a blurb:
Download of the Week The Download of the Week is Rawls's Peoples (Rex Martin and David Reidy eds, ENVISIONING A NEW INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) by Philip Pettit. Here is the abstract:
Friday, June 24, 2005
Whittington on Pickerill Keith E. Whittington (Princeton University - Department of Politics) has posted James Madison has Left the Building: A Review of J. Mitchell Pickerill, Constitutional Deliberation in Congress (University of Chicago Law Review, Vol. 72, No. 3, Summer 2005) on SSRN. Here is the abstract:
Pettit on Rawls's Law of Peoples Philip N. Pettit (Princeton University - Department of Politics) has posted Rawls's Peoples (Rex Martin and David Reidy eds, ENVISIONING A NEW INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) on SSRN. Here is the abstract:
Thursday, June 23, 2005
Originalism in the Blogosphere Brian Leiter recently had the following to say about originalism:
In addition, supermajorities may believe that it is better to speak in abstract or general terms rather than address constitutional provisions to specific problems of their day, because of a desire to allow the language to be applied in new ways to meet the challenges of the future. This seems to be the case with respect to the history of the adoption of the Fourteenth Amendment, to take only one example.
Balkin continues:
In many contexts, original meaning, original intention, and original application converge. However, where the words used in a constitution are relatively abstract, these three ideas tend to come apart. An example are the words "cruel and unusual punishments." Under original public meaning originalism the original meanings of the concepts used (and their meaning in combination with each other) should be preserved, but we are not necessarily bound by either the intentions of the persons who framed the words, or by the general public expectation of how those words would be applied. The concept of cruelty stays the same, but what we have to figure out what that concept means in our own time. Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application. It also conflates the nature of a concept with the particular set of issues before people at the time they considered constitutional language. Wednesday, June 22, 2005
Willis on Predatory Lending Lauren E. Willis (Loyola-LA Law School) has posted Decisionmaking & the Limits of Disclosure: The Problem of Predatory Lending on SSRN. Here is the abstract:
de Figueiredo on Telecommunications Litigation John M.P. de Figueiredo (Princeton University - Program in Law and Public Affairs) has posted Strategic Plaintiffs and Ideological Judges in Telecommunications Litigation (Journal of Law, Economics and Organization, Forthcoming) on SSRN. Here is the abstract:
Nolan-Haley on Law and Mediation Jacqueline M. Nolan-Haley (Fordham University School of Law) has posted The Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound (Cardozo Journal of Dispute Resolution, Vol. 6, p. 57, 2004) on SSRN. Here is the abstract:
Tuesday, June 21, 2005
Sunstein on Chevron Cass R. Sunstein (University of Chicago Law School) has posted Chevron Step Zero (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
Two by Ribstein Larry Ribstein has posted two papers on SSRN:
Walker on the Problem of Collective Saving David I. Walker (Boston University School of Law) has posted The Social Insurance Crisis and the Problem of Collective Saving: A Commentary on Shaviro's 'Reckless Disregard' (Boston College Law Review, Vol. 45, pp. 1347-1361, 2004) on SSRN. Here is the abstract:
Guthrie & George on the Futility of Appeal Chris Guthrie and Tracey George (Vanderbilt University - School of Law and Vanderbilt University - School of Law) have posted The Futility of Appeal: Disciplinary Insights into the 'Affirmance Effect' on The United States Court of Appeals (Florida State University Law Review, Symposium Issue, Vol. 32, p. 357, 2005) on SSRN. Here is the abstract:
Parisi, Palmer and Bussani on Pure Economic Loss Francesco Parisi , Vernon V. Palmer and Mauro Bussani (George Mason University School of Law , Tulane Law School and University of Trieste School of Law) have posted The Comparative Law and Economics of Pure Economic Loss. Here is the abstract:
Monday, June 20, 2005
Stadler on Law School Teaching Sara K Stadler (Emory University - School of Law) has posted The Bulls and Bears of Law Teaching (Washington and Lee Law Review, 2006) on SSRN. Here is the abstract:
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First Amendment Law Intellectual Property Law International and Compartive Law International Trade Law and . . . Media Law
Contract Law Corporations Criminal Law & Procedure Election Law Legal History Property Law Tort Law
Antitrust Law Commercial Law Constitutional Law Environmental Law Jurisprudence Admiralty Law & Trusts and Estates Cyberlaw Two by Yoo Christopher Yoo (Vanderbilt) has posted two papers on SSRN:
Rubenstein on Private Attorneys General William B. Rubenstein (University of California, Los Angeles - School of Law) has posted On What a "Private Attorney General" is - And Why it Matters (Vanderbilt Law Review, Vol. 57, No. 6, p. 2129, November 2004) on SSRN. Here is the abstract:
Richman on Communities Creating Economic Advantage Barak D. Richman (Duke University School of Law) has posted How Communities Create Economic Advantage: Jewish Diamond Merchants in New York on SSRN. Here is the abstract:
Sunday, June 19, 2005
Legal Theory Lexicon: The Counter-Majoritarian Difficulty
This entry in the Legal Theory Lexicon explores the counter-majoritarian difficulty, efforts to solve the problem and to dissolve it. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. As is frequently the case with the Lexicon, we will explore a very big topic in just a few paragraphs. Many articles and books have been written about the counter-majoritarian difficulty; we will only scratch its surface. Moreover, any really deep discussion of the counter-majoritarian difficulty would lead (sooner or later) to almost every other topic in constitutional theory. The Lexicon is “quick and dirty,” and definitely not deep, comprehensive, or authoritative. Democracy and Majoritarianism The counter-majoritarian difficulty is rooted in ideas about the relationship between democracy and legitimacy (see the Legal Theory Lexicon entry on Legitimacy ). We all know the basic story: the actions of government are legitimate because of their democratic pedigree, and democratic legitimacy requires “majority rule.” Of course, it isn’t that simple. Among the complexities are the following: Constitutional Limits on Majoritarianism The counter-majoritarian difficulty is sometimes characterized as a problem with the institution of judicial review, but it could also be understood as a difficulty for any constitution that constrains majority will. Of course, there could be constitutions that impose no limits at all on the will of democratically elected legislatures. For example, a regime of unicameral parliamentary supremacy might be said to have a constitution that allows a parliamentary majority to pass any legislation that it pleases and to override the courts or executive whenever the legislature is in disagreement with their actions. Of course, even this simple constitution might constrain the legislature in a certain sense. For example, legislation that attempts to constrain the action of a future legislature might be “unconstitutional.” Another example might be legislation that abolishes elections and substitutes a system of self-perpetuating appointments. Similarly, a legislature might pass a “bill of rights” that purports to bind future legislatures, even in the absence of an institution of judicial review. The Institution of Judicial Review Even though the counter-majoritarian difficulty might be a feature of any system with a binding constitution, the difficulty is especially acute for a regime that incorporates the institution of judicial review incorporating judicial supremacy. In the United States, for example, the courts have the power to declare that acts of Congress are unconstitutional, and if the Supreme Court so declares, the Congress does not have the power to override its decision. The institution of judicial review is counter-majoritarian in part because federal judges are not elected and they serve life terms. Presidents are elected every four years; members of the House of Representatives every two years; and Senators serve staggered six year terms. Of course, judges and justices are nominated by the President and confirmed by the Senate and these features create some degree of democratic control of the judiciary. Nonetheless, on the surface, it certainly looks like judicial review is an antidemocratic institution. Unelected judges strike down legislation enacted by elected legislators: that is certainly antidemocratic and antimajoritarian in some sense. The counter-majoritarian difficulty is compounded by the nature of judicial review as it has been practiced by the modern Supreme Court. If the Supreme Court limited itself to enforcing the separation of powers between the President and Congress or to the enforcement of the relatively determinate provisions of the constitution that establish the “rules of the game” for the political branches, then the counter-majoritarian difficulty might not amount to much. But the modern Supreme Court has been involved in the enforcement of constitutional provisions that general, abstract, and seemingly value laden—examples include the freedom of speech, the equal protection clause, and the due process clause of the constitution. The counter-majoritarian difficulty seems particularly acute when it comes to so-called “implied fundamental rights,” like the right to privacy at issue in cases like Griswold v. Connecticut and Roe v. Wade. Answering the Countermajoritarian Difficulty How have constitutional theorists attempted to answer the counter-majoritarian difficulty? The problem with answer that question is that there are so many answers that it is difficult to single out three or four for illustrative purposes. So remember, the “answers” that are discussed here are arbitrary selections from a much longer list.
Anti-Democratic Political Theory Another answer to the counter-majoritarian difficulty admits that judicial review is antidemocratic but seeks to justify this feature by appeal to some value that trumps democratic legitimacy. This isn’t really just one answer to the difficulty—it is a whole lot of answers that share a common feature—the appeal to anti-democratic political values. For example, it might be argued that “liberty” is a higher value than “democracy” and hence that judicial review to protect liberty is justified. Or it might be argued that “equality” is a higher value, or “privacy,” or something else. Obviously, there is a lot more to be said about this kind of answer to the counter-majoritarian difficulty, but for the purposes of this Lexicon entry, this incredibly terse explanation will have to suffice. Dualism and High Politics Yet a third approach to the counter-majoritarian difficulty attempts to turn the problem upside down—arguing that judicial review is actually a democratic institution that checks the antidemocratic actions of elected officials. Whoa Nelly! How does that work? This third approach is strongly associated with the work of Bruce Ackerman—perhaps the most influential constitutional theorist since Alexander Bickel. Ackerman’s views deserve at least a whole Lexicon entry, but the gist of his theory can be stated briefly. Ackerman argues for a view that can be called “dualism,” because it distinguishes between two kinds of politics—“ordinary politics” (the kind practiced every day by legislators and bureaucrats) and “constitutional politics.” What is “constitutional politics”? And how is it different from “ordinary politics”? Ackerman’s answers to these questions begin with the idea that ordinary politics isn’t very democratic. Why not? We all know the answer to that question. Ordinary politics are dominated by self-interested politicians and manipulative special interest groups. The people (or “We the People” as Ackerman likes to say) don’t really get involved in ordinary politics, and therefore, ordinary politics are not really very democratic. Constitutional politics, by way of contrast, involve extraordinary issues that actually “get the attention” of the people. For example, the ratification of the Constitution of 1789 caught the attention of ordinary citizens, as did the Reconstruction Amendments (the 13th, 14th, and 15th) following the Civil War. When “We the People” become engaged in constitutional politics, we are giving commands to our agents—Congress and the President—and the Courts are merely enforcing our will when they engaged in judicial review—so long as they are faithful to our commands. Whew! That was a lot of “We the People” talk. I need a break from channeling Ackerman, before I can finish this entry! OK. I’m back! Ackerman’s theory emphasized the idea of distinct regimes that resulted from “constitutional moments”—periods of intense popular involvement in constitutional politics. Recently, Jack Balkin and Sandy Levinson have advanced a similar theory—which emphasizes that idea of “high politics”—the great popular movements that seek to influence the decisions of the Supreme Court on issues like abortion or affirmative action. I can’t do justice to their theory here, but the idea is that the Supreme Court may be responding to democratic pressures when it makes the really big constitutional decisions. There is another side to this story. There may be reasons why elected politicians prefer for the Supreme Court to “take the heat” for some decisions that are controversial. When the Supreme Court acts, politicians may be able to say, “It wasn’t me. It was that darn Supreme Court.” And in fact, the Supreme Court’s involvement in some hot button issues may actually help political parties to mobilize their base: “Give us money, so that we can [confirm/defeat] the President’s nominee to the Supreme Court, who may cast the crucial vote on [abortion, affirmative action, school prayer, etc.].” In other words, what appears to be counter-majoritarian may actually have been welcomed by the political branches that, on the surface, appear to have been thwarted. Conclusion Once again, I’ve gone on for too long. I hope you will forgive me, and I hope that this Lexicon entry has given you food for thought about the counter-majoritarian difficulty. Below, I’ve included a list of references to articles that focus on the difficulty itself and also to some of the authors who have attempted to give answers to Bickel’s famous problem. References This is a very incomplete list, emphasizing the works that are focused on “the counter-majoritarian difficulty” in particular and omitting many important works of constitutional theory that deal with the counter-majoritarian difficulty as part of a larger enterprise.
Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001). Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-18 (2d ed. 1986). Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 Geo. Wash. L. Rev. 1373 (1998); Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933 (2001). Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 334 (1998). Barry Friedman, The History Of The Countermajoritarian Difficulty, Part II: Reconstruction's Political Court , 91 Geo. L.J. 1 (2002). Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Three: The Lesson Of Lochner, 76 N.Y.U. L. Rev. 1383 (2001). Barry Friedman, The History Of The Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. Pa. L. Rev. 971 (2000). Barry Friedman, The Birth Of An Academic Obsession: The History Of The Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002). Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995). Saturday, June 18, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Groundwork of the Metaphysics of Morals by Immanuel Kant. Actually, Kant's classic book--which has introduced generations of students to his moral philosophy--needs no recommendation. But I thought it might be worthwhile to recommend this particular edition, which is in the Cambridge Texts in the History of Philosophy and includes an introduction by Christine Korsgaard. What the hell, I might as well include the blurb:
Download of the Week The Download of the Week is Federalism and the Spending Power from Dole to Birmingham Board of Education by Lynn Baker. Here is the abstract:
Friday, June 17, 2005
Barnett Blogs the AALS Contracts Conference Randy Barnett has been live blogging the AALS Contract Conference. Here are links to his posts: Chandler the Network Structure of Supreme Court Jurisprudence Seth J. Chandler (University of Houston Law Center) has posted The Network Structure of Supreme Court Jurisprudence on SSRN. Here is the abstract:
Adams on Radical Integration Michelle Adams (Seton Hall University School of Law) has posted Radical Integration (California Law Review, Forthcoming) on SSRN. Here is the abstract:
New from Law & Politics Review
PROVISIONAL MEASURES IN INTERNATIONAL LAW: THE INTERNATIONAL COURT OF JUSTICE AND THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, by Shabtai Rosenne. Oxford: Oxford University Press, 2005. 262pp. Hardcover. $125.00/£60.00. ISBN: 0-19-926806-1. Reviewed by Christopher C. Joyner. CONSTRUCTING VICTIMS' RIGHTS: THE HOME OFFICE, NEW LABOUR, AND VICTIMS, by Paul Rock. NY: Oxford University Press, 2004. 608pp. Hardcover. $150.00/ £75.00. ISBN: 0-19-927549-1. Reviewed by Susan Sarnoff. HOUSING SEGREGATION IN SUBURBAN AMERICA SINCE 1960: PRESIDENTIAL AND JUDICIAL POLITICS, by Charles M. Lamb. New York, NY: Cambridge University Press, 2005. 318pp. Hardback $70.00 / £45.00. ISBN: 0-521-83944-0. Paper $24.99 / £18.99. ISBN: 0-521-54827-6. Reviewed by Joyce A. Baugh. TERM LIMITS AND THE DISMANTLING OF STATE LEGISLATIVE PROFESSIONALISM, by Thad Kousser. New York: Cambridge University Press, 2005. 286 pp. Paperback: $29.99 / £17.99. ISBN: 052154873X. Hardcover: $70.00 / £45.00. ISBN: 0521839858. Reviewed by Ashlyn Kuersten. Wenger on Slavery as a Takings Clause Violation Kaimipono Wenger (Thomas Jefferson School of Law) has posted Slavery as a Takings Clause Violation (American University Law Review, Vol. 53, No. 191, 2004) on SSRN. Here is the abstract:
Thursday, June 16, 2005
Perry on Universality, Relativity, and Religious Freedom Michael J. Perry (Emory University School of Law) has posted A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture (Roger Williams University Law Review, Vol. 10, pp. 349-389, 2005) on SSRN. Here is the abstract:
Baker on the Spending Power Lynn A. Baker (University of Texas Law School) has posted Federalism and the Spending Power from Dole to Birmingham Board of Education (THE REHNQUIST LEGACY, Curtis Bradley, ed., Cambridge University Press, 2006) on SSRN. Here is the abstract:
Forbath on Liberal America's Long Life William E. Forbath (University of Texas at Austin - School of Law) on Liberal America's Long Life has posted The Long Life of Liberal America: Law and State-Building in the U.S. and U.K. (Law and History Review, Forthcoming) on SSRN. Here is the abstract:
Chamallas on the Kingsfield Dilemma Martha Chamallas (Ohio State University - Michael E. Moritz College of Law) has posted The Shadow of Professor Kingsfield: Contemporary Dilemmas Facing Women Law Professors (William & Mary Journal of Women and the Law, Vol. 11, 2005) on SSRN. Here is the abstract:
New from Law & Politics Book Review
LAW IN AMERICA: A SHORT HISTORY, by Lawrence M. Friedman. New York: The Modern Library, 2004. 224pp. Paper. $12.95. ISBN: 0-8129-7285-6. Hardcover. $19.95. ISBN: 0-375-50635-7. Reviewed by Bradley C. Canon. THE LOUISIANA CIVILIAN EXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION, by Vernon Valentine Palmer. Durham, NC: Carolina Academic Press, 2005. 304pp. Paper. $35.00. ISBN: 1-59460-060-0. Reviewed by Rick A. Swanson. TERRORISM AND COUNTER-TERRORISM: CRIMINOLOGICAL PERSPECTIVES, by Mathieu Deflem (ed.). Amsterdam: Elsevier, 2004. 226 pp. Cloth. £63.50 / €95.00 / $95.00. ISBN: 0-7623-1040-5. Reviewed by Priscilla H. M. Zotti. Wednesday, June 15, 2005
Hillman on the Culture of Partnership Robert W. Hillman (University of California, Davis School of Law) has posted Law, Culture and the Lore of Partnership: Of Entrepreneurs, Accountability, and the Evolving Status of Partners on SSRN. Here is the abstract:
New from Law & Politics Review
CORPORATE GOVERNANCE IN GOVERNMENT CORPORATIONS, by Michael J. Whincop. Aldershot, England & Burlington VT: Ashgate Publishing Ltd., 2004. 258pp. Hardback. $99.95/£55.00. ISBN: 0 7546 2276 2. Reviewed by Daniel J.H. Greenwood. CONSTITUTIONAL GOODS, by Alan Brudner. Oxford: Oxford University Press, 2004. 464pp. Hardback. $135.00 / £70.00. ISBN: 0199274665. Reviewed by Beau Breslin. ON THE RULE OF LAW: HISTORY, POLITICS, THEORY, by Brian Z. Tamanaha. Cambridge: Cambridge University Press, 2004. 188pp. Hardback. $70.00/£40.00. ISBN: 0-521-84362-6. Paper. $28.99/£16.99. ISBN: 0-521-60465-6. Reviewed by Mark Welton.
Curtis on St. George Tucker Michael Kent Curtis (Wake Forest University - School of Law) has posted St. George Tucker and the Legacy of Slavery (William & Mary Law Review, 2005) on SSRN. Here is the abstract:
Sterk on Claeys Stewart E. Sterk (Cardozo Law School) has posted The Inevitable Failure of Nuisance-based Theories of the Takings Clause: A Reply to Professor Claeys (Northwestern University Law Review, Vol. 99, p. 231, 2004) on SSRN. Here is the abstract:
Tuesday, June 14, 2005
Census of Law Professor Blogs Over at PrawfsBlawg, Daniel Solove has been guest blogging. He's done a very helpful census of law professor blogs--follow this link. Sterk on Regulatory Takings & Federalism Stewart E. Sterk (Cardozo Law School) has posted The Federalist Dimension of Regulatory Takings Jurisprudence (Yale Law Journal Vol. 114, p. 203, 2004) on SSRN. Here is the abstract:
Monday, June 13, 2005
A Comment on Tamanaha Over at Law and Society Blog, there is a nice post that comments on Brian Tamanaha's essay The Perils of Pervasive Legal Instrumentalism (follow the link to download this highly recommended essay). Here is a taste from the L&S comment:
Ribstein on Non-Organizational Law Larry E. Ribstein (University of Illinois College of Law) has posted The Important Role of Non-Organization Law (Wake Forest University Business Law Symposium, 2005) on SSRN. Here is the abstract:
Tabb on the Globalization of Consumer Bankruptcy Charles Jordan Tabb (University of Illinois at Urbana-Champaign College) has posted Lessons from the Globalization of Consumer Bankruptcy (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:
Arlen on Contractual Alternatives to Malpractice Liability Jennifer Arlen (New York University School of Law) has posted Private Contractual Alternatives to Malpractice Liability (MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM: NEW CENTURY, DIFFERENT ISSUES, Rogan Kersh, William Sage, eds., Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:
Schroeder on Lacey on Hart with a Psychoanalytic Twist Jeanne L. Schroeder (Cardozo Law School) has posted Beautiful Dreamer: A Book Review of Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (University of Colorado Law Review, Vol. 77, 2006) on SSRN. Here is the abstract:
Sunday, June 12, 2005
Legal Theory Lexicon: Legitimacy
This entry in the Legal Theory Lexicon theory will examine the concept of legitimacy from various angles. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Normative and Sociological Legitimacy Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false beliefs. The opposite can be true as well: for example, Bush v. Gore might have been perceived as illegitimate, when, in fact, it actually was a legitimate decision. Conceptions of Legitimacy
So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy. Four Conceptions of Legitimacy
Let’s take a more familiar example. Federal judges are not directly elected. They are appointed for life terms. Although the President (who nominates federal judges) and the Senate (which confirms them) are both elected bodies, the judges who sit at any given time have an indirect and diffuse democratic pedigree. Moreover, there life terms make them relatively insular. So there is a question of legitimacy about the institution of judicial review. Does the fact that Supreme Court Justices are not elected make it illegitimate for them to invalidate actions taken by elected officials? Of course, that’s a big question. For our purposes, the important point is that the question itself is one of democratic legitimacy. Legitimacy as Legal Authority Another conception of legitimate seems to focus on legal authority. For example, when President Truman ordered the seizure of the steel mills during the Korean War, there was not question but that he had been elected in 1948. But despite the fact that Truman was elected democratically, there was still a question about the legitimacy of his action. Even if his action was democratic, it may not have been legal. When an official acts outside her sphere of legal authority, we sometimes say that here decision was “illegitimate.” When we use “legitimacy” in this way, we seem to be relying on the idea that legitimacy is connected to legal authority. Actions that are not legally authorized are frequently called “illegitimate” whereas actions that are lawful are sometimes seen as legitimate for that reason. Legitimacy as Reliability Yet another theory ties legitimacy to the reliability of the process that produces the decision. To see the point of the “reliability conception” of legitimacy, we need to step back for a moment. There is a difference between the “correctness” or “justice” of a decision, on the one hand, and its “legitimacy” on the other. Indeed, this seems to be a crucial feature of “legitimacy.” We think that an incorrect decision can nonetheless be legitimate, whereas a correct decision can lack legitimacy. Reliability theories acknowledge this “gap” between legitimacy and justice, but insist that there is nonetheless a strong connection between the two. The idea is that legitimacy requires a decision making process that meets some threshold requirement of reliability. So tossing a coin would not be a legitimate method for deciding legal disputes. Even if the coin toss came out the right way and the party that would have won in a fair trial did win the coin toss, the decision that resulted from the flip of a coin would be criticized as illegitimate. One important example of a reliability theory of legitimacy is found in Randy Barnett’s book, Restoring the Lost Constitution. Barnett argues that the legitimacy of a constitution depends on its reliability in producing just outcomes. A legitimate constitution guarantees a tolerable level of justice. A constitution that does not provide such a guarantee is illegitimate—or so Barnett argues. The Liberal Principle of Legitimacy Let’s do one more theory of legitimacy. John Rawls’s has advanced what he called “the liberal principle of legitimacy.” Here is how Rawls states the principle:
Is it really the case that the various conceptions of legitimacy compete with one another? There is another possibility—that some (or all) of these conceptions are complementary. For example, we might say that a given judicial decision has legitimacy in the sense that it was made by legally authorized officials, but that the same decision lacks democratic legitimacy, because it was made by unelected judges contrary to the will of democratically elected legislators. If this way of talking is sensible, then it may be the case that the various conceptions of legitimacy do not compete with one another, but rather exist in some sort of complementary relationship. Saturday, June 11, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Sovereign Virtue: The Theory and Practice of Equality by Ronald Dworkin. Dworkin is one of the key participants in the "equality of what" debate--one of the key controversies in contemporary political theory. Dworkin's views were developed in a series of articles, in Philosophy and Public Affairs and elsewhere. That material has been reworked as this book, which is essential reading for anyone interested in the theory of distributive justice and egalitarianism. Here's a blurb:
Download of the Week The Download of the Week is Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence by Max M. Schanzenbach and Emerson H. Tiller. Here is the abstract:
Friday, June 10, 2005
Sunstein on a New Progressivism Cass R. Sunstein (University of Chicago Law School) has posted A New Progressivism (Stanford Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:
Abramowicz and Tiller on Judicial Citation ot Legislative History Michael Abramowicz and Emerson H. Tiller (The George Washington University Law School and Northwestern University - School of Law) have posted Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis on SSRN. Here is the abstract:
Wu on Decision Architectures Tim Wu (University of Virginia School of Law) has posted Intellectual Property, Innovation, and Decision Architectures (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
Rosenfeld on Stressful Balancing Michel Rosenfeld (Cardozo Law School) has posted Judicial Balancing in Times of Stress: Comparing Diverse Approaches to the War on Terror on SSRN. Here is the abstract:
Thursday, June 09, 2005
Barnett on Raich Randy Barnett, the oralist for the Respondents, has a short piece on Gonzales v. Raich on National Review Online. Here's a taste:
Schanzenbach and Tiller on PPT & the Judging Under the Sentenching Guidelines Max M. Schanzenbach and Emerson H. Tiller (Northwestern University - School of Law and Northwestern University - School of Law) have posted Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence on SSRN. Here is the abstract:
Stout on Inefficient Markets Lynn A. Stout (University of California, Los Angeles - School of Law) has posted Inefficient Markets and the New Finance (Journal of Financial Transformation, Forthcoming) on SSRN. Here is the abstract:
Keenan on Crime in the Age of Globalization Patrick Keenan (University of Illinois College of Law) has posted The New Deterrence: Crime and Policy in the Age of Globalization (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
Book Announcement: Sullivan on Religious Freedom
Griffith on Mandatory Disclosure of D&O Policies Sean J. Griffith (University of Connecticut - School of Law and University of Pennsylvania - School of Law) has posted Unleashing a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors' & Officers' Liability Insurance Policies on SSRN. Here is the abstract:
Wednesday, June 08, 2005
Rosenberg & Shavell on Litigation Costs David Rosenberg and Steven Shavell (Harvard Law School and Harvard Law School) have posted A Simple Proposal to Halve Litigation Costs on SSRN. Here is the abstract:
Baird on INS v. AP Douglas G. Baird (University of Chicago Law School) has posted Property, Natural Monopoly, and the Uneasy Legacy of INS v. AP on SSRN. Here is the abstract:
Bradford on Secondary Use in Copyright Laura R. Bradford (New York University - School of Law) has posted Parody and Perception: An Alternative Approach to Secondary Use in Copyright (Boston College Law Review, Summer 2005) on SSRN. Here is the abstract:
Two by Levy Jacob Levy (Chicago, Political Science) has posted two new papers on SSRN:
Competition Announcement: European Philosophy
Tuesday, June 07, 2005
Welcome to the Blogosphere . . . to four new members of the LawProf Blog Network:
Corrado on Responsibility & Control Michael L. Corrado (University of North Carolina at Chapel Hill - School of Law) has posted Responsibility and Control (Hofstra Law Review, Forthcoming) on SSRN. Here is the abstract:
Event Announcement: Law & Political Philosophy Discussion Group The first meeting of the Law and Political Philosophy discussion group of the University of Wales, Aberystwyth, UK, will be held on Wednesday, 15th of June, from 1-2pm at the Law Seminar room of the University. The presentation is going to be by Roland Pierik (Tilburg University Law School, The Netherlands) and the title is 'Slavery Reparations and Distributive Justice'. (The url for our blog is http://lawinterpol.blogspot.com/). Conference Announcement: Privacy Law at Villanova
Perry on a Right to Religious Freedom Michael J. Perry (Emory) has posted A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture on SSRN. Here is the abstract:
Conference Announcement: MIND2005 at Edinburgh
Monday, June 06, 2005
Gonzales v. Raich, Part I: A Guide to the Posts This post will be updated throughout the day. Last update was made at 4:32 p.m. PDST. Given the length of the posts, I have divided my coverage into four Parts as follows:
Part II: An Analysis of the Decision. This post contains my commentary on and analysis of the decision. Part III: Excepts from the Opinions. This post includes links to the opinions and extensive excerpts with key passages in bold. Part IV: Links. This post links to news stories and to blogosopheric reaction. Gonzales v. Raich, Part II: An Analysis of the Decision
The ultimate meaning of Supreme Court opinions is rarely apparent on the day they are decided. For one thing, it takes time to digest the opinions in complex cases. A sentence or two in a footnote can loom large once their significance is appreciated. A concurring opinion or dissent may become more significant in retrospect. Moreover, the meaning of one case frequently depends on the way that it is followed or distinguished, by lower courts and by the Supreme Court itself. So early assessments of Supreme Court decisions should always be prefaced by a note of caution. The opinions in this post have been formed after a few hours of study and thought, but they may not represent my own opinion in a few days—much less represent the settled judgment of history! Background Today’s decision in Raich can be seen as the confluence of two powerful forces. On the one hand, Raich is one stage in an ongoing social movement for the legalization (or decriminalization) of the medical use of marijuana. On the other hand, Raich represents a moment in the evolution of constitutionalism federalism, and may even mark the end of the “New Federalism” as a significant movement in the jurisprudence of the United States Supreme Court. Both of these forces deserve a few more words, before we get to Raich itself. That there is a significant movement for the legalization of medical use of marijuana is unquestionable. That movement has resulted in the passage of initiatives and other legislation in several states, including California. These statutes typically legalize the possession and use of marijuana for medical purposes pursuant to a doctor’s written authorization. The medical marijuana movement is connected to a broader movement for the decriminalization of marijuana for all purposes, but many supporters of the legalization of medical marijuana do not support general decriminalization. The medical marijuana movement has been successful in several states, but it has not been able to persuade either the FDA (Food and Drug Administration) or Congress to legalize medical marijuana. Because federal law trumps state law under the Supremacy Clause of the Constitution, the movement turned to litigation. To be successful, the movement would need to convince the federal courts of one of three propositions: (1) that the Controlled Substances Act did not prohibit medical use of marijuana, (2) that there is a constitutional right to use marijuana for medical purposes, or (3) that Congress lacked authority to regulate home-grown medical marijuana. All of these arguments have been tried in various courts, but the movements greatest litigation success came in Raich when the Ninth Circuit ruled against the government on the third theory—that Congress lacked power to prohibit the use and possession of noncommercial medical cannabis. There is a second force at work in Raich--the so-called “New Federalism” as a doctrine in constitutional law. To understand the “New Federalism,” we need to take a step back. Beginning in 1937, the United States Supreme Court began to issue a series of opinions that substantially broadened Congress’s power under the interstate commerce clause and the necessary and proper clause of the Constitution. In a series of decisions over about three decades, the New Deal Court and later the Warren Court gradually erased most of the significant restrictions on Congress’s legislative power. By the early 1980s, the generally accepted view was that Congress had “plenary” or unlimited power to regulate. For better or worse, the conventional wisdom was that Congress’s commerce clause powers were virtually unlimited. In 1995, however, the Court struck down the Gun Free School Zones Act in United States v. Lopez. Then in 2000, the Court decided United States v. Morrison, striking down the Violence Against Women Act. Together, Lopez and Morrison suggested that the commerce clause power was not plenary, and that the Supreme Court might be willing to reinvigorate the original constitutional scheme of a federal government with limited enumerated powers. One way of viewing the decision in Raich is that it represents a defeat for both the medical marijuana movement and for the Supreme Court’s New Federalism jurisprudence. In sense, these two different forces were brought together in Raich by coincidence rather than by any deep connection. The medical marijuana movement would have been happy if Congress had forced the states to accept legalized medical marijuana. Advocates of the New Federalism might well have preferred if the next big Supreme Court case had involved something other than drugs. Nonetheless, these two forces did come together in Raich. What Is the Significance of Raich The primary aim of this post is to assess the constitutional significance of the United States Supreme Court’s decision in Raich. Does Raich signal the end of the New Federalism? After Raich will Lopez and Morrison have continued vitality as significant limits on the power of Congress? To answer these questions, we need to begin by laying out the constitutional doctrine as it existed before Raich was decided. Then, we will need to take a close look at the opinions in Raich and assess their significance in light of the preexisting doctrinal structure. So let’s get to it! The Structure of Commerce Clause Doctrine Prior to Raich Lopez and Morrison established a general framework for the analysis of commerce-clause issues. The precise contours of that framework were contested. Opponents of the New Federalism had narrow readings of Lopez and Morrison. Friends of the New Federalism read those cases more broadly. What I am about to offer is my take on the doctrinal framework. Unsurprisingly, I think I’m right. In fact, I am fairly sure that the analysis that I offer here provides the best understanding of the New Federalism prior to Raich, but I am just as certain that some very smart constitutional scholars would disagree. We need to begin with three categories—(1) channels, (2) instrumentalities, and (3) effects. Ultimately, I don’t think these categories mean much. They come from a case called Perez v. United States, but if you trace them back through the case law, you will discover that the meaning of the three categories changed significantly over time. But were are stuck with them. What do they mean? Congress is said to have power over three categories of activity involving commerce: (1) regulation of the channels of commerce, (2) regulation of the instrumentalities of commerce, and (3) regulation of activities with a substantial effect on commerce. Forget categories one and two. We will be concerned with category three. Let’s step back for a moment. Congress can regulate interstate commerce itself. Of course, that’s what the commerce clause itself authorizes. But what if congress wants to regulate something that is noncommercial or wholly intrastate? In Wickard v. Filburn, the Supreme Court upheld a statute that regulated wheat that was consumed on a farm and never entered the interstate market; indeed, the wheat was never sold at all. The Court concluded that the “cumulative effect” on interstate commerce of regulating wheat that was used on all the farms in the country could be substantial, and therefore, that the regulation was a valid exercise of the commerce clause power. So in Lopez and Morrison, the Supreme Court had to limit the reach of Wickard v. Filburn. After all, couldn’t the regulation of gun possession near schools or violence against women have a significant cumulative effect on interstate commerce? Justice Rehnquist’s opinions in Lopez and Morrison suggested that the Wickard cumulative effects test had a limited domain of application—that Congress could only regulate intrastate economic activity based on a significant effect on interstate commerce. Here is my summary of the doctrinal structure that emergence in the new federalism cases:
Step Two: Does the regulation target economic activity with a significant effect on interstate commerce? If yes, then the regulation is valid under the necessary and proper clause. If no, go to step three. Step Three: Is the regulation of noneconomic intrastate activity essential to a larger regulatory scheme? If yes, then the regulation is valid under the necessary and proper clause of the Constitution. If no, then the regulation is invalid. The Application of the Structure to Raich So how does this framework apply to Raich? There are many subtleties and complications. So I want to proceed as follows. Initially, we will do a very simple analysis under the three step test outline above, then we add the complexities back into our understanding of the issues, one at a time. Here goes:
Step Two: Does the regulation target economic activity with a significant effect on interstate commerce? No, the activity in Raich is not economic, because no sale or barter was involved. Step Three: Is the regulation of noneconomic intrastate activity essential to a larger regulatory scheme? Maybe, the record in Raich contains virtually nothing that speaks to this question, and even the briefs have very little to say about this issue. What Is “Economic” Activity? Under Lopez and Morrison, the Wickard v. Filburn cumulative-effects test was applied only if the activity that Congress regulated was “economic” in nature. But those cases did not provide a clear definition of what “economic” meant. Justice Stevens did supply such a definition today in Raich Here is what he said:
Digression: Stevens definition is actually quite bizarre. First, it includes only commodities. It would suggest that the category of “economic” activity excludes services entirely—even if the service is sold or bartered. That can’t be right. Second, it includes anything that can be categorized as a commodity—even if the commodity in question has no connection to sale or barter. If a child plucks daisy’s from a home garden and weaves them into a garland, that is “economic” activity according to Justice Stevens. End of Digression. In other words, Raich provides a new definition of “economic” that significantly expands the sphere of activity to which Wickard v. Filburn applies—as compared to the Lopez and Morrison framework. Defining the Class of Activity So far, we have been assuming that the relevant class of activity is noncommercial medical marijuana use and possession. That is the class that was identified by the Respondents and by the Ninth Circuit. But is that the relevant class? The government argued that the relevant class of activity is defined by the statute itself. In other words, the question is not whether noncommercial medical marijuana can be regulated by Congress, but instead is whether all cannabis use can be regulated by Congress. In other words, the government took the position that the validity of the statute depends entirely on whether the statute withstands a “facial” challenge. In fact, the government took the position that there is no such thing as an “as applied” challenge to a statute under the commerce clause. The Opinion of the Court, authored by Justice Stevens, is less than perfectly clear on this issue. Certainly, Justice Stevens did not adopt the government’s opinion. In fact, there is no reference to the idea of a “facial” challenge in Stevens opinion, and his analysis seems to assume that “as applied” challenges are appropriate. Here is the most extensive discussion of the class definition issue in Stevens’s opinion:
Putting this confusion to the side, let me reiterate the main point: for Justice Stevens, Raich is all about the question whether the regulation of noncommercial medical use and possession of intrastate marijuana is “essential” for a larger regulatory scheme. But that leads us to the next issue: what standards of review (burdens of production and persuasion) govern this issue? The Burdens of Production and Persuasion and Standards of Review Let’s forget about the litigation for a moment. Does Congress really need to regulate noncommercial use and possession of intrastate medical cannabis in order to achieve the purposes of the Controlled Substances Act? I hope you will forgive me for being blunt, but I think it is pretty clear that the answer to this question is obviously “No!” In fact, if Congress were to amend the CSA to create a state option to legalize medical cannabis, it is unlikely that there would be any significant effect on the market for illegal cannabis. Sure, there would be some leakage from the legal medical market to the illegal recreational market, but given the overall size of the recreational market, that leakage would be insignificant. This is especially true in light of the fact that the Raich decision is unlikely to have any significant effect in discouraging the medical use of marijuana, much less the recreational use of pot. But the legal question has very little to do with the real world. In the legal context, the crucial questions are: who has the burden of showing that the regulation of medical noncommercial intrastate marijuana is essential to the regulation of the interstate recreational market. And how strong must the evidence be? Again, Justice Stevens’s opinion is not perfectly clear, but the general thrust of his opinion is that the government can meet its burden by a showing that Congress could rationally believe that the regulations were essential. The word “rational” has a special meaning here. This is the “rational” of the “rational basis test” that is familiar to every student of American constitutional law. The general idea is that Congress does not need to be right. Congress does not even need to make credible findings of fact. Nor does the government need to make a credible showing in an evidentiary hearing before a judge. The rational basis test can be passed if the lawyers for the government can make an argument about what the facts might be, and Congress would not be “irrational” (or crazy) to have believed that argument. Here are some excerpts from Justice Stevens’s opinion that use the rational basis test: Implications for the New Federalism What are the implications of all of this for the New Federalism? Justice O’Connor suggests in her dissenting opinion that Raich is the death knell for the Lopez and Morrison as significant constraints on Congress’s power. Here is how she put it:
In other words, it appears that Justice O’Connor is right. After Raich, it seems unlikely that any lower court will use Lopez and Morrison as the basis for invalidating any statute that Congress wants to survive. Of course, there may be some older statutes that suffer from the same defect as did the Gun Free School Zones Act and the Violence Against Women Act. That is, in statutes that predate Raich, Congress may have drafted badly by isolating a wholly intrastate, noneconomic class of activity for regulation. But even these older statutes may be saved by Justice Stevens opinion. Why? Because it surely does not matter whether a given provision is passed by Congress in a separate bill—as opposed to being passed as part of a larger statutory scheme. That would be a purely formal distinction, and a pretty silly one at that. Surely Congress can add to an existing regulatory scheme through incremental legislation that addresses a particular intrastate noneconomic activity. So long as the government can argue that Congress could rationally have concluded that the new increment is “essential,” then the statute should survive after Raich. But wait a minute, you exclaim, wouldn’t that same reasoning have saved the statutes in Lopez and Morrison? Maybe! It is certainly possible that Lopez and Morrison will now be confined to their facts. It is also possible that these decisions will continue to live a curious sort of “half life,” continuing to be invoked when Congress fails legislate cleverly. Conclusion This post is already far too long, and I’ve only gotten started. I may have more to say later, but for now, I will close by saying this: It looks like Raich is a landmark decision that signals the end of the New Federalism as a significant limit on the powers of Congress. Gonzales v. Raich, Part III: Excerpts from the Opinions
This is one of four posts that deal with Raich. This post links to the opinions and provides extensive excerpts from them. Links to the Opinions All of these are links to PDF files. All four opinions in one file are 79 pages long. Here are the links, both to the individual opinions, and to a single file that contains all four:
Justice Scalia's Concurrence Justice O'Connor's Dissent, joined by the Chief Justice and Justice Thomas Justice Thomas's Separate Dissent All Four Opinions in One File
Our case law firmly establishes Congress? power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. * * * As we stated in Wickard, ?even if appellee?s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.? Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the "total incidence" of a practice poses a threat to a national market, it may regulate the entire class. (emphasis added)
The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed ?to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . ." and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. See nn. 20?21, supra. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would similarly affect price and market conditions. (emphasis added)
The fact that Wickard's own impact on the market was "trivial by itself" was not a sufficient reason for removing him from the scope of federal regulation. 317 U. S., at 127. That the Secretary of Agriculture elected to exempt even smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was significant, nor did that fact play any role in the Court's analysis. Moreover, even though Wickard was indeed a commercial farmer, the activity he was engaged in "the cultivation of wheat for home consumption" was not treated by the Court as part of his commercial farming operation.30 And while it is true that the record in the Wickard case itself established the causal connection between the production for local use and the national market, we have before us findings by Congress to the same effect.
It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress?s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. * * * And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.
By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate? from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities.
Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme.
This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws * * * presumption here: Nothing suggests that California?s controls are ineffective. The scant evidence that exists suggests that few people?the vast majority of whom are aged 40 or older?register to use medical marijuana.
Gonzales v. Raich, Part IV: Links This is the fourh of four posts on the Raich case. This part supplies excerpts from and links to news reports and blogospheric reaction to the case.
* * * In a dissent, Justice Sandra Day O'Connor said that states should be allowed to set their own rules. "The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," said O'Connor, who was joined by other states' rights advocates. The legal question presented a dilemma for the court's conservatives, who have pushed to broaden states' rights in recent years, invalidating federal laws dealing with gun possession near schools and violence against women on the grounds the activity was too local to justify federal intrusion. O'Connor said she would have opposed California's medical marijuana law if she was a voter or a legislator. But she said the court was overreaching to endorse "making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use."
New: Commerce Clause Doctrine and "Practicalities" (Sam Bagenstos, Scotus Blog) New: The Normalization of Rehnquist Court Commerce Clause Jurisprudence? (Ernie Young, Scotus Blog) New: Who was inconsistent about federalism in Raich? (Ann Althouse, Scotus blog) New: "Understanding" Gonzalez v. Raich (Mark Tushnet, Scotus Blog) New: Ninomania by David Wagner Thoughts on Ashcroft v. Raich by David Bernstein (Volokh Conspiracy) Raich as Constitutional Law Doctrine (Orin Kerr, guest on Scotus Blog)
Supreme Court allows prosecution of medical marijuana (CNN, Associated Press) Government can bar medical marijuana use (ABC, Reuters) Court rules medical marijuana laws don't shield users (USA Today, AP plus) U.S. Supreme Court Rules Against Use of Medical Marijuana (Bloomberg) State Medical Marijuana Laws Remain Valid Despite U.S. Supreme Court Ruling in Raich v. Ashcroft, ACLU Says (ACLU Press Release) Tiller & Cross on Legal Doctrine Emerson H. Tiller and Frank B. Cross (Northwestern University - School of Law and University of Texas at Austin - Department of Management Science & Information Systems) have posted What is Legal Doctrine? on SSRN. Here is the abstract:
The Future of Family Law The the Institute for American Values has published The Future of Family Law. Here is a description:
These are some of the questions currently being discussed in the field of family law, where arguments about the future of the family have moved far beyond the question of same-sex marriage. The Future of Family Law: Law and the Marriage Crisis in North America, a new report released by the Council on Family Law, takes a close look at how two influential legal organizations, the American Law Institute and the Law Commission of Canada, are proposing to answer them. Written by Daniel Cere of McGill University, this report holds up for clear view the fundamentally different models of marriage that are contributing to deep public clashes over the law of marriage, cohabitation, and parenthood. The Next Justice? Tony Mauro has a piece entitled On the Trail of the Latest High Court Contender over at Law.com. Here's a taste:
Sunday, June 05, 2005
Legal Theory Lexicon: The Attitudinal Model & the New Institutionalism
As always, this entry in the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. Many of you were political science majors, and this may be “old hat” to you, but others will be exposed to these ideas for the first time. A word of warning: the dominant response of the legal academy to the study of law by political scientists is ignorance. It may seems strange, but it is nonetheless true that many law professors have barely heard of the attitudinal model and would have to guess what the “new institutionalism” might be. Don’t make this mistake. Political scientists bring a rich set of tools and concepts to legal theory, and the legal academy has much to learn from them. One more thing: this entry discusses only a small portion of the political science that is relevant to the study of law. Political science includes many different approaches—including rational choice and game theoretic approaches that have much in common with what is called “law and economics” in the legal academy. The Legal Model and the Attitudinal Model Suppose you were a political scientist and you wanted to explain and predict the behavior of a court—for example, the United States Supreme Court. What variables would serve as the best predictors? One possibility is that you would seek to predict Supreme Court decisions using legal concepts. For example, you might use the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation. Let’s call this approach to the explanation and prediction of legal decisions, the “legal model.” Even first-year law students are likely to see that the legal model may not do a very good job of predicting the outcome of appellate cases. Once you study constitutional law, you are likely to learn that decisions of the contemporary Supreme Court are rarely based on a simple application of preexisting legal rules to the facts (as they are presented to the Court given the procedural posture of the case). Instead, contemporary legal education is likely to emphasize the political dimension of the Supreme Court—with liberal, moderate, and conservative Justices lining up in more or less predictable patters, especially with respect to certain politically-charged issues—implied fundamental rights, federalism, and criminal procedure, for example. Within the legal academy, the connection between judicial decisionmaking and politics is associated with American legal realism (and, more recently, with the Critical Legal Studies movement). But in political science, this same insight has been developed in an empirically more rigorous way, and frequently is called “the attitudinal model.” The basic insight of the attitudinal model is that judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes of judges. Thus, a simple attitudinal model might code each justice as occupying a point on a real line from left to right. A judge at the left-most point on the line would be very liberal. A judge on the right-most point of the line would be very conservative. The model might then predict how a judge’s attitudes (or position in attitudinal space) would correlate with positions on particular issues. Conservative judges are likely to vote against a right to abortion; liberal judges may be likely to uphold assertions of national power against challenges on federalism grounds. Which model does a better job of predicting judicial behavior? If we limit our attention to the United States Supreme Court, it looks, at first blush, like the attitudinal model “beats the pants” off the legal model. But appearances may be deceiving. The United States Supreme Court does not hear very many “easy cases”—cases in which the application of preexisting legal rules control the outcome of the dispute. Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. Instead, the Court tends to focus on those cases in which the law is uncertain, the lower courts are divided, or there is a perceived need for a change in the law. Moreover, cases which are controlled by clear rules of law are usually settled. It is extremely rare for a party to spend the hundreds of thousands of dollars required to litigate a case to the Supreme Court on a sure-fire loser! There is another reason why we would not expect the Supreme Court’s decisions to be predicted by a simple “legal model.” The Court does not consider itself bound by its own prior decisions. Given that the Court has the legal power to depart from precedent, it is hardly surprising that the Court does not behave as if it were so bound. When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. For example, defendants will rarely pay large sums to settle claims that have no legal merit. Of course, this point needs to be qualified in various ways. If a case has sufficient merit to get to a jury, it may have settlement value, even if an “ideal” jury would find against the plaintiff. Similarly, litigation itself is costly, and meritless claims may have “nuisance value” so long as they cannot be thrown out of court at an early stage—by a demurrer or motion to dismiss for failure to state a claim upon which relief can be granted. More broadly, most legal practitioners (lawyers and judges, for example) are likely to think that a very simple attitudinal model is missing something. Even if politics is important and legal doctrine is not the only important factor that shapes legal behavior, any story about legal institutions that leaves the law out of the story seems to be missing something that is crucially important—both to the understanding of the law and to understanding American politics. The New Institutionalism And that brings us to what is sometimes called “the new institutionalism,” a somewhat eclectic movement within political science that seeks to integrate legal doctrine and the distinctive character of legal institutions in political-science approaches to the study of law. When I say “somewhat eclectic,” I mean that there is no single methodology or doctrine that characterizes all of the work that fits under the “new institutionalism” umbrella. And of course, the name of this approach, the new institutionalism, points backwards to an old institutionalism—the approach commonly associated with figures like Corwin and McCloskey (and more recently with Martin Shapiro). One way to look at the work in the “new institutionalist” tradition is to use the distinction between internal and external perspectives that is familiar to legal theorists. From the internal perspective, new institutionalist work is work that takes “the law,” broadly defined to include legal institutions, concepts, categories, and doctrines seriously. But new institutionalist work is not the same as doctrinal legal scholarship. The new institutionalists situate “the law” in political contexts. Where a doctrinalist analysis aims at producing a restatement of a legal rule, institutionalists are more likely to be focused on an elaboration of the development of legal thought in a wider social context. From the external perspective, new institutionalists are interested in the causal influences on and of legal phenomenon. Some new institutionalists embrace the attitudinal model as a starting point for their analysis, whereas others may be more critical of attitudinalism, but any work that looks at law from the external perspective will step outside of legal doctrine and ask questions about the causal influences that shape legal institutions. Conclusion It is hardly surprising that a brief Lexicon entry cannot do justice to a whole body of work. The best way to learn about the attitudinal model and the new institutionalism is to read some work. If I might be permitted to play favorites, I would strongly suggest The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman as a book the exemplifies the important contribution that political science can make to the study of law! Bibliography
Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, North Carolina: Duke University Press, 1993). Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993). Martin Shapiro, Law and Politics in the Supreme Court (New York, Free Press 1964). Howard Gillman, “What Has Law Got to Do With It?” 26 Law & Social Inquiry 465-504 (2001). Rogers Smith, "Political Jurisprudence, the 'New Institutionalism,' and the Future of Public Law," 82 American Political Science Review 89-108 (1988). (available on JSTOR, follow this link.) Supreme Court Decision-Making: New Institutionalist Approaches (edited by Howard Gillman & Cornell W. Clayton) (University of Chicago Press, 1999). The Supreme Court in American Politics: New Institutionalist Interpretations (edited by Howard Gillman & Cornell W. Clayton) (University Press of Kansas, 1999). Saturday, June 04, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Optional Law : The Structure of Legal Entitlements by Ian Ayres. Here is a blurb:
Download of the Week The Download of the Week is Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past? by Steven Douglas Smith. Here is the abstract:
Friday, June 03, 2005
Gordon on the Agricultural Labor Movement Jennifer Gordon (Fordham University School of Law) has posted A Movement in the Wake of a New Law: The United Farm Workers and the California Agricultural Labor Relations Act on SSRN. Here is the abstract:
Walter on Trafficking in Humans Marilyn R. Walter (Brooklyn Law School) has posted Trafficking in Humans: Now and in Herman Melville's 'Benito Cereno' (William & Mary Journal of Women and the Law, Vol. 12, 2005) on SSRN. Here is the abstract:
Hoffman & Tarzian on End-of-Life Care Diane E. Hoffmann and Anita J. Tarzian (University of Maryland - School of Law and University of Maryland, Baltimore County - General) have posted Dying in America - An Examination of Policies that Deter Adequate End-of-Life Care in Nursing Homes (Journal of Law, Medicine and Ethics, Vol. 33, No. 2, Summer 2005) on SSRN. Here is the abstract:
Thursday, June 02, 2005
Gilson on the Function of Corporation Law Ronald J. Gilson (Stanford Law School) has posted Separation and the Function of Corporation Law on SSRN. Here is the abstract:
Deadline Reminder: Society for Applied Philosophy
Conference Announcement: LatCrit
Wednesday, June 01, 2005
Ramsey on Descriptive Trademarks and Freedom of Speech Lisa P. Ramsey (University of San Diego - School of Law) has posted Descriptive Trademarks and the First Amendment (Intellectual Property Law Journal, Vol. 36, p. 271, 2004; and Tennessee Law Review, Vol. 70, p. 1095, 2003) on SSRN. Here is the abstract:
Bibas on Blakely & Substance versus Procedure Stephanos Bibas (University of Iowa, College of Law) has posted The Blakely Earthquake Exposes the Procedure/Substance Fault Line (Federal Sentencing Reporter, Vol. 17, No. 4, April 2005) on SSRN. Here is the abtract:
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