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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Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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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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Saturday, July 30, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends The Puzzle of Judicial Behavior by Lawrence Baum. Here is a blurb:
Download of the Week The Download of the Week is Exclusionary Amenities in Residential Communities by Lior Strahilevitz. Here is the abstract:
Friday, July 29, 2005
Andrus on Wikis, Blogs, and Intelligence D. Calvin Andrus (Central Intelligence Agency) has posted The Wiki and the Blog: Toward a Complex Adaptive Intelligence Community on SSRN. Here is the abstract:
Baron on Baker v. State Charles Hillel Baron (Boston College - Law School) has posted Baker v. State and the Promise of the New Judicial Federalism (Boston College Law Review, Vol. 43, pp. 125-158, 2001) on SSRN. Here is the abstract:
Langer on Managerial Juding in International Criminal Courts Maximo Langer (University of California, Los Angeles - School of Law) has posted The Rise of Managerial Judging in International Criminal Law (American Journal of Comparative Law, Vol. 53, January 2006) on SSRN. Here is the abstract:
Lenard & Rubin on Data Security-Breach Notification Requirements Thomas M. Lenard and Paul H. Rubin (Progress & Freedom Foundation - General and Emory University School of Law) have posted An Economic Analysis of Notification Requirements for Data Security Breaches on SSRN. Here is the abstract:
Goodrich Goes Postal Peter Goodrich (Yeshiva University - Cardozo Law School) has posted The Posthumous Life of the Postal Rule Requiem and Revival of Adams v. Lindsell (FEMINIST PERSPECTIVES ON CONTRACT LAW, London: Glasshouse Press, 2005) on SSRN. Here is the abstract:
Klick & Stratman on Senior Prescription-Drug Price Sensitivity Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted How Sensitive Are Seniors to the Price of Prescription Drugs? on SSRN. Here is the abstract:
Thursday, July 28, 2005
Bartow on Women & Secondary Copyright Liability Ann Bartow (University of South Carolina - School of Law) has posted Women in the Web of Secondary Copyright Liability and Internet Filtering. Here is the abstract:
Goodrich on Satirical Legal Studies Peter Goodrich (Yeshiva University - Cardozo Law School) has posted Satirical Legal Studies: From the Legists to the Lizard (Michigan Law Review, Vol. 103, p. 307, 2004) on SSRN. Here is the abstract:
Klick & Stratmann on Diabetes Treatment & Moral Hazard Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted Diabetes Treatments and Moral Hazard on SSRN. Here is the abstract:
Lee on a European SEC Ruben Lee (Oxford Finance Group) has posted Politics and the Creation of a European SEC: The Optimal UK Strategy - Constructive Inconsistency on SSRN. Here is the abstract:
Call for Papers:
Whether moral judgments consist in cognitive or non-cognitive states, what is the content of those states? What explains their connection to motivation? What is the essential difference between beliefs and desires? Are moral judgments judgments about reasons? What is it to act on reasons? How do reasons function in the explanation of action? What is the relationship between reasons and rationality? What kind of authority do moral and reasons judgments have for the agent and why? Does rationality demand that one is motivated accordingly? What is the relationship vbetween autonomy and acting on such judgments? Is the focus on the psychological a good way to put the basic questions of metaethics? Can it shed new light on classic problems, such as the Frege-Geach challenge and the alleged queerness of moral properties? Conference Announcement: Pain and Death: Politics, Aesthetics and Legalities at Canberra
Wednesday, July 27, 2005
Romana on Sarbox Roberta Romano (Yale Law School) has posted The Sarbanes-Oxley Act and the Making of Quack Corporate Governance (Yale Law Journal, June 2005) on SSRN. Here is the abstract:
Baron on Law & Literature Jane B. Baron (Temple University School of Law) has posted The Rhetoric of Law and Literature (Cardozo Law Review, Vol. 26, p. 2273, 2005) on SSRN. Here is the abstract:
Harcourt on on Prediction and Punishing Bernard E. Harcourt (University of Chicago - Law School) has posted Against Prediction: Sentencing, Policing, and Punishing in an Actuarial Age on SSRN. Here is the abstract:
Garoupa on Optimal Enforcement Technology Nuno Garoupa (New University of Lisbon - Faculdade de Economia) has posted On the Optimal Choice of Enforcement Technology: An Efficiency Explanation of the ECHR. Here is the abstract:
Daughety & Reinganum on Quality Signaling Andrew F. Daughety and Jennifer F. Reinganum (Vanderbilt University - Department of Economics and Vanderbilt University - Department of Economics) have posted Imperfect Competition and Quality Signaling on SSRN. Here is the abstract:
Tuesday, July 26, 2005
Garnett on Conversations With Catholicism Richard W. Garnett (Notre Dame Law School) has posted American Conversations With(in) Catholicism (Michigan Law Review, Vol. 102, p. 1191, May 2004) on SSRN. Here is the abstract:
Lyons on Double Effect in Constitutional Law Edward C. Lyons (Ave Maria School of Law) has posted In Incognito: The Principle of Double Effect in American Constitutional Law (Florida Law Review, Vol. 57, No. 3, pp. 469-563, 2005) on SSRN. Here is the abstract:
Monday, July 25, 2005
McCaffery on Hybrid Income & Consumption Taxes Edward J. McCaffery (University of Southern California - Law School) has posted Good Hybrids/Bad Hybrids (Tax Notes, June 27, pp. 1699-1709, June 2005) on SSRN. Here is the abstract:
Strahilevitz on Exclusionary Amenities Lior Strahilevitz (University of Chicago Law School) has posted Exclusionary Amenities in Residential Communities on SSRN. Here is the abstract:
Bragues on Rorty George Bragues (University of Guelph-Humber) has posted Richard Rorty's Postmodern Case for Liberal Democracy: A Critique (Humanitas, Forthcoming) on SSRN. Here is the abstract:
Armour on Who Should Make Corporate Law John Armour (Faculty of Law, University of Cambridge) has posted Who Should Make Corporate Law? EC Legislation versus Regulatory Competition (Current Legal Problems, Vol. 48, 2005) on SSRN. Here is the abstract:
Saturday, July 23, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Justice in Plainclothes by Lawrence G. Sager. Here is a blurb:
Dowload of the Week The Download of the Week is Legal Realism as Theory of Law by Michael Steven Green. Here is the abstract:
Another Highly Recommended for Law's Aim in Law's Empire by John Gardner. Rappaport Quibbles with a Quibble Mike Rappaport replies to my post criticizing a recent Wall Street Journal article. Friday, July 22, 2005
Green on Legal Realism Michael Steven Green (George Mason University - School of Law) has posted Legal Realism as Theory of Law (William & Mary Law Review, Vol. 46, pp. 1915-2000, 2005) on SSRN. Here is the abstract:
Bernstein on Bolling David E. Bernstein (George Mason University - School of Law) has posted Bolling, Equal Protection, Due Process, and Lochnerphobia on SSRN. Here is the abstract:
Perez on Institutionalizing Inconsistency Oren Perez (Bar-Ilan University, Faculty of Law) has posted The Institutionalization of Inconsistency: From Fluid Concepts to Random Walk (PARADOXES AND INCONSISTENCIES IN LAW, O. Perez and G. Teubner, eds., Oxford: Hart Publishing, 2005/6) on SSRN. Here is the abstract:
Lobel & Lowenstein on Symbolism in Foreign Policy & International Law Jules Lobel and George Loewenstein (University of Pittsburgh School of Law and Carnegie Mellon University - Department of Social and Decision Sciences) have posted Emote Control: the Substitution of Symbol for Substance in Foreign Policy and International Law (Chicago Kent Law Review, Vol. 80, July 2005) on SSRN. Here is the abstract:
Thursday, July 21, 2005
Quibbles There is a generally quite good article on the front page of today's Wall Street Journal entitled In Re Judge Roberts: Question Of 'Originalism' Looms Large by Jess Bravin, but I have a theoretical quibble or two:
Quibble Two: Everyone Interprets "In Light of Evolving Standrads of Decency" Here is the passage:
Quibble Three: Examples Must be Explained Here is the passage:
Leib on Contract Types and Contract Theories Ethan Leib has posted On Collaboration, Organizations, and Conciliation in the General Theory of Contract on SSRN. Here is the absract:
Choper on the Political Question Doctrine Jesse H. Choper (University of California, Berkeley - School of Law (Boalt Hall)) has posted The Political Question Doctrine: Suggested Criteria (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:
Sany on the Separation Barrier Cases Yuval Shany (Law School, College of Management Academic Studies) has posted Capacities and Inadequacies: A Look at the Two Separation Barrier Cases (Israel Law Review, Vol. 38, pp. 230-246, 2005) on SSRN. Here is the abstract:
Sedley on the Future of Human Rights Stephen Sedley (The Royal Courts of Justice - England and Wales) has posted The Rocks or the Open Sea: Where is the Human Rights Act Heading? (Journal of Law and Society, Vol. 32, No. 1, pp. 3-17, March 2005) on SSRN. Here is the abstract:
Roberts Won't "Bork" Himself in Public I've been reviewing John Robert's opinions and other legal writings since the nomination was announced. There are some clues to his views about legal theory--more on that in the weeks to come--but I already have one firm prediction: Roberts won't "Bork" himself in public. Robert Bork's public persona--his character and manner of self-presentation--were shaped by his academic career. The academic life shapes character and behavior in ways that have the potential for both good and ill. Serious academics are encouraged to "spout off"--to express their opinions and ideas. Law professors are used to an environment of intellectual inequality--the paradigm teaching experience is Socratic dialogue in a first-year classroom. "Bork" has become a verb--we talk about someone getting "Borked," referring to the intense and partisan atmosphere of his confirmation process. But I should like to suggest that Bork "Borked" himself--that he said far too much about ideas that were appropriate for the seminar room but out-of-place in the hearing room. But John Roberts is no Robert Bork. His temperment and personal style have been shaped by the experience of high-level legal practice, including the exacting crucible of Supreme Court advocacy. That experience encourages humility, self-restraint, and caution about the expression of ideas. Do not expect John Roberts to be goaded into expressing dogmatic opinions about particular issues or high constitutional theory. Do not expect Roberts to articulate controversial views about originalism or any other "ism." In other words, do not expect John Roberts to "Bork" himself. Of course, there are others who will attempt to "Bork" John Roberts--to draw controversial and political contentious implications from his writings and opinions. But if we set aside the controversial positions, he took in written briefs--as we should, it is already becoming clear that it will be very difficult to "Bork" Roberts on the basis of his judicial opinions or articles. What John Roberts has written in his own voice reflects the character shaped by his life as a lawyer. Roberts hasn't "Borked" himself yet. Don't expect it to happen soon. Ethics of Blogging Survey Some months ago, I participated in a survey on the ethics of blogging. You can view the results here. Here is a taste from the analysis, which focuses in part on the distinction between "personal" and "non-personal" bloggers:
Update: And check out this post by Larry Ribstein. Wednesday, July 20, 2005
Fellowship Announcement
Barnett on Roberts Check out Randy Barnett's Who is John Roberts? Who knows? as the Conspiracy. Here's a taste:
Lipshaw on the Duty Not to Enforce a Promise The always interesting Jeff Lipshaw has posted Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise on SSRN. Here is the abstract:
Farrelly on Left-Libertarianism Colin Farrelly has posted Should the Left Embrace Left-Libertarianism on SSRN. Here is a taste:
Guiora on Counter-Terrorism & the Rule of Law Amos N. Guiora (Case Western Reserve University School of Law) has posted Counter-terrorism and the Rule of Law on SSRN. Here is the abstract:
Tuesday, July 19, 2005
Debate on Judicial Review in Dissent Check this out! It begins with:Followed by:And:And concludes with:Great stuff! Burgess-Jackson on Fish Keith Burgess-Jackson takes Stanley Fish to task for failing to acknowledge the distinction between "speakers meaning" and "sentence meaning". Here's a taste:
Update: See also Mike Rappaport's post here and this post by Jim Lindgren. John G. Roberts, Jr. . . . is reportedly President Bush's nominee. Here is his out-of-date bio from Westlaw:
Streumer Reviews Audi On Notre Dame Philosophical Reviews, Bart Streumer, Fitzwilliam College, Cambridge University, reviews Robert Audi, The Good in the Right: A Theory of Intuition and Intrinsic Value. Here is a taste:
Link for Gardner's Paper My apologies for omitting the link to John Gardner's paper. (Scroll down for an excerpt.) Here's the link: Law's Aim in Law's Empire. "International Justice" Entry Posted on the Stanford Encyclopedia of Philosophy Michael Plake has posted International Justice on the Stanford Encyclopaedia of Philosophy. Here is a taste:
Davenport Review Religion and the Liberal Polity On Notre Dame Philosophical Reviews, John J. Davenport, Fordham University, reviews Religion and the Liberal Polity, Terence Cuneo, ed., Religion and the Liberal Polity, University of Notre Dame Press, 2005, 280pp, $22.00 (pbk), ISBN 0268022895. Here is a taste:
Monday, July 18, 2005
Guiora on Targeted Killing Amos N. Guiora (Case Western Reserve University School of Law) has posted Targeted Killing as Active Self-Defense (Case Western Reserve Journal of International Law, Vol. 36, p. 319, 2004) on SSRN. Here is the abstract:
Gardner on Law's Aim John Gardner (Oxford) has posted Law's Aim in Law's Empire. Gardner is deep, interesting, sophisticated, and works from a perspective that is very much his own. Here is a taste from the introduction of the paper:
Ronald Dworkin belongs to a long tradition of writers who hold, by contrast, that law has some purpose that is both unifying and distinctive. His book Law’s Empire is an unusual contribution to this tradition in that it stands for the view that law must have a unifying-and-distinctive purpose, but it does not commit itself to a final view on what this purpose is.3 In chapter 3 of Law’s Empire, Dworkin provisionally attributes a purpose to law in order to ‘organize[ ] further argument about law’s character’.4 Even if he has this purpose wrong, he argues, some unifying-and-distinctive purpose for law must be relied upon if arguments about the nature of law are to get off the ground. We need ‘a statement of the central concept of [our] institution that will allow [us] to see our arguments … as arguments over rival conceptions of that concept.’5 To furnish such a ‘conceptual statement’6 in the case of law, he says, we must find ‘the most abstract and fundamental point of legal practice’.7 For law is an ‘interpretive enterprise’8 and this means that those who are interested in finding out what (else) is true about law have to begin by taking an ‘interpretive attitude’ to their subject. This in turn means starting from the assumption that law ‘has some point’ that sets it apart and brings it together it as the particular interpretive enterprise that it is. Saturday, July 16, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Laws of Fear : Beyond the Precautionary Principle (The Seeley Lectures) by Cass R. Sunstein. Here is the exuberant blurg:
Download of the Week The Download of the Week is Is There an American Jurisprudence? by Brian Leiter. Here is the abstract:
Friday, July 15, 2005
Guiora on Torture Amos N. Guiora (Case Western Reserve University School of Law) has posted The Unholy Trinity: Intelligence, Interrogation and Torture on SSRN. Here is the abstract:
Kerr on Search & Seizure Orin S. Kerr (The George Washington University Law School) has posted Search and Seizure: Past, Present, and Future (OXFORD ENCYCLOPEDIA OF LEGAL HISTORY, 2006) on SSRN. Here is the abstract:
Leiter on "American Jurisprudence" Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted Is There an American Jurisprudence? (Oxford Journal of Legal Studies, Vol. 17, pp. 367-387, Summer 1997) on SSRN. Here is the abstract:
Thursday, July 14, 2005
Stack on the Statutory President Kevin M. Stack (Yeshiva University - Benjamin N Cardozo School of Law) has posted The Statutory President (Iowa Law Review, Vol. 90, No. 539, 2005) on SSRN. Here is the abstract:
Guiora on Counter-terrorism Amos N. Guiora (Case Western Reserve University School of Law) has posted Counter-terrorism and the Rule of Law on SSRN. Here is the abstract:
Arbatskaya & Mialon on Two-Activity Contests Maria N. Arbatskaya and Hugo M. Mialon (Emory University and Emory University - Department of Economics) have posted Two-Activity Contests on SSRN. Here is the abstract:
Blair on Team Production Margaret M. Blair (Vanderbilt University - School of Law) has posted Institutionalists, Neoclassicals, and Team Production (British Journal of Industrial Relations, Forthcoming) on SSRN. Here is the abstract:
Wednesday, July 13, 2005
Benbchuk on Shareholder Power Lucian Arye Bebchuk (Harvard Law School) has posted The Case for Increasing Shareholder Power (Harvard Law Review, Vol. 118, pp. 833-917, 2005) on SSRN. Here is the abstract:
Mialon & Mialon on the Effects of the Fourth Amendment Hugo M. Mialon and Sue H. Mialon (Emory University, Department of Economics and Emory University - Department of Economics) have posted The Effects of the Fourth Amendment: A Strategic Model of Crime and Search on SSRN. Here is the abstract:
Witte on Rights in the Western Tradition John Witte Jr. (Emory University - School of Law) has posted Rights in the Western Tradition (THE ENCYCLOPEDIA OF CHRISTIANITY, (Grand Rapids/Leiden: Wm. B. Eerdmans Publishing Company/E.J. Brill), Vol. 4) on SSRN. Here is the abstract:
Jacobi & Tiller on Legal Doctrine & Political Control Tonja Jacobi and Emerson H. Tiller (Northwestern University - School of Law and Northwestern University - School of Law) have posted Legal Doctrine and Political Control on SSRN. Here is the abstract:
Tuesday, July 12, 2005
Morantz on Regulatory Devolution Alison D. Morantz (Stanford Law School) has posted Has Regulatory Devolution Injured American Workers? A Comparison of State and Federal Enforcement of Construction Safety Regulations on SSRN. Here is the abstract:
Madoff on Undue Influence Ray D. Madoff (Boston College - Law School) has posted Unmasking Undue Influence (Minnesota Law Review, Vol. 81, pp. 571-629, 1997) on SSRN. Here is the abstract:
Stark on Divorce Reform & the Protection of Children Barbara Stark (Hofstra University - School of Law) has posted Rhetoric, Divorce and International Human Rights: The Limits of Divorce Reform for the Protection of Children (Louisiana Law Review Louisiana Law Review, 2005) on SSRN. Here is the abstract:
Wirth on Third World Environmental Advocacy David A. Wirth (Boston College - Law School) has posted Legitimacy, Accountability, and Partnership: A Model for Advocacy on Third World Environmental Issues (Yale Law Journal, Vol. 100, pp. 2645-2666, 1991) on SSRN. Here is the abstract:
Monday, July 11, 2005
Recommnending One Book for Prospective Law Students? Which single book would you recommend for prospective law students is the question posed over at the Conglomorate by Gordon Smith--prompted by this list provided by Harvard. Larry Ribstein answers with R.H. Coase, The Firm, the Market and the Law--a great choice. What legal theory book would I recommend? The answer is easy--H.L.A. Hart's The Concept of Law--but it isn't an easy read. Nussim on Mechanisms for Redistribution Jacob Nussim (Bar-Ilan University, Faculty of Law) has posted Redistribution Mechanisms on SSRN. Here is the abstract:
Witte on Adams & Public Religion John Witte Jr. (Emory University - School of Law) has posted One Public Religion, Many Private Religions: John Adams and the 1780 Massachusetts Constitution (THE FOUNDERS ON GOD AND GOVERNMENT, Daniel L. Dreisbach, Mark D. Hall, and Jeffry R. Morrison, eds., pp. 23-52, Lanham, MD: Rowman & Littlefield, 2004) on SSRN. Here is the abstract:
Sunday, July 10, 2005
Legal Theory Lexicon: Distributive Justice
This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory. Context A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justce. But let's put that concern aside for now. Rawls's Theory of Distributive Justice: Justice as Fairness Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try. Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent. Rawls argues that the parties to the original position would choose two principles of distributive justice:
2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society. In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle. Rival Approaches to Distributive Justice What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.
Utilitarians are frequently criticized on the ground that they lack a princpled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea. Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed. Egalitarianism Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted. Desert Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution. This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant. Libertarianism Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions. In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated. One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life. Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has hightlighted this possibility. There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours. I think you can alreay see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality. Conclusion This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking! I've included a short bibliography and some links to other resources on the Internet! Bibliography
Joh Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988) Robert Nozick, Anarchy, State, & Utopia (1974) John Rawls, Justice as Fairness: A Restatemetn (2001) John Rawls, A Theory of Justice (1971) Jean-Jacques Rousseau,'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)
Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy Julian Lamont, Distributive Justice, Stanford Encyclopedia of Philosophy Fred D'Agostino, Original Position, Stanford Encyclopedia of Philosophy Amartya Sen, Equality of What (PDF) More Blogger Blocking David Law (University of San Diego) writes from Shanghai, China that Blogspot is blocked there! This on top of my discovery about the Ramada in Green River, Utah. Horrors! I am happy to report that Lincoln, Nebraska is still blog friendly! Legal Theory Bookworm The Legal Theory Bookworm recommends two classic one-volume histories of the common law:
An introduction to English legal history by J. H. Baker Download of the Week The Download of the Week is The Jeffersonian Treaty Clause by Gary Lawson and Guy I. Seidman. Here is the abstract:
Friday, July 08, 2005
What Does Ramada Have Against Blogging My apologies for the late postings today. I was in Green River, Utah, this morning at a "Ramada Limited," chosen in part for its wireless Internet access. When I tried to post this morning, I discovered that Ramada has blocking software installed which blocks access to Blogger, the back end for Legal Theory Blog! Is it Ramada? Is it Utah? Is the heightened terrorism alert? Enquiring minds want to know! Coquillette on Professionalism Daniel Coquillette (Boston College - Law School) has posted Professionalism: The Deep Theory (North Carolina Law Review, Vol. 72, pp. 1271-1277, 1994) on SSRN. Here is the abstract:
Wells on Pragmatism Catharine P. Wells (Boston College - Law School) has posted Why Pragmatism Works for Me (Southern California Law Review University of Southern California Law Review, Vol. 74, pp. 347-360, 2000) on SSRN. Here is the abstract:
Barnhizer on Sustainability David Barnhizer (Cleveland State University - Cleveland-Marshall College of Law) has posted Operational versus Rhetorical Sustainability: Conflicting Goals, Values and Functions (Cleveland-Marshall College of Law Legal Studies Research Paper Series) on SSRN. Here is the abstract:
Markell on Citizen Submissions to the North American Commission for Environmental Cooperation David L. Markell (Florida State University - College of Law) has posted Governance of International Institutions: A Review of the North American Commission for Environmental Cooperation's Citizen Submissions (North Carolina Journal of International Law and Commercial Regulation, Vol. 30, p. 759, 2005) on SSRN. Here is the abstract:
Thursday, July 07, 2005
Johnsen on Judicial Selection Dawn E. Johnsen (Indiana University School of Law, Bloomington) has posted Should Ideology Matter in Selecting Federal Judges?: Ground Rules for the Debate (Cardozo Law Review, Vol. 26, No. 2, 2005) on SSRN. Here is the abstract:
My own paper from the conference is: Judicial Selection: Ideology versus Character. Kahan & Bramen on Cultural Cognition Dan M. Kahan and Donald Braman (Yale Law School and Yale University - Law School) have posted Cultural Cognition and Public Policy on SSRN. Here is the abstract:
Lawson & Seidman on the Treaty Clause Gary Lawson and Guy I. Seidman (Boston University School of Law and Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted The Jeffersonian Treaty Clause (University of Illinois Law Review, 2006) Here is the abstract:
Schuck on Protecting Religious Diversity Peter H. Schuck (Yale Law School) has posted Protecting Diversity: Religion (Chapter 7) (Peter Schuck, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE, Harvard University Press, 2003) on SSRN. Here is the abstract:
Wednesday, July 06, 2005
Rappaport Replies to Balkin on the Supermajoritarian Case for Originalism Check out Mike Rappaport's reply to Balkin. Here's a taste:
Rosenkranz on Rules? of Statutory Interpretation Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted Federal Rules of Statutory Interpretation (Harvard Law Review, Vol. 115, p. 2085, 2002) on SSRN. Here is the abstract:
Lawson, Ferguson, and Montero on Mathews & Penn Central Gary Lawson , Katharine Ferguson and Guillermo A. Montero (Boston University School of Law , Boston University and Government of the United States of America - Environment and Natural Resource) have posted Oh Lord, Please Don't Let Me Be Misunderstood!: Rediscovering the Mathews v. Eldridge and Penn Central Frameworks (Notre Dame Law Review, Vol. 81, 2005) on SSRN. Here is the abstract:
Sullivan on Disparate Impact Charles A. Sullivan (Seton Hall University - School of Law) has posted Disparate Impact: Looking Past the Desert Palace Mirage (William & Mary Law Review) on SSRN. Here is the abstract:
Mayto9n the 527 Myth William Ty Mayton (Emory University - School of Law) has posted The Myth of 527 Organizations on SSRN. Here is the abstract:
Tuesday, July 05, 2005
Rosenkranz on the Treaty Power Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted Executing the Treaty Power (Harvard Law Review, Vol. 118, p. 1867, 2005) on SSRN. Here is the abstract:
Rossi on Regulatory Bargaining Jim Rossi (Florida State University - College of Law) has posted Regulatory Bargaining and Public Law (Jim Rossi, REGULATORY BARGAINING AND PUBLIC LAW, Cambridge University Press, 2005) on SSRN. Here is the abstract:
Beale on the AMT Linda M. Beale (University of Illinois College of Law) has posted Congress Fiddles While Middle America Burns: Amending the AMT (and Regular Tax) (Florida Tax Review, Vol. 6, No. 9, 2004) on SSRN. Here is the abstract:
Sullivan on the Asterisk Footnote Charles A. Sullivan (Seton Hall University - School of Law) has posted The Under-Theorized Asterisk Footnote (Georgetown Law Journal, Vol. 93, p. 1093, 2005) on SSRN. Here is the abstract:
Johnsen on the Rehnquist Court & Congressional Power Dawn E. Johnsen (Indiana University School of Law, Bloomington) has posted Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change (Indiana Law Journal, Vol. 78, p. 363, 2003) on SSRN. Here is the abstract:
Monday, July 04, 2005
Garnett on Zoning & Home Businesses Nicole Stelle Garnett (Notre Dame Law School) has posted On Castles and Commerce: Zoning Law and the Home-Business Dilemma (William & Mary Law Review, Vol. 42, pp. 1191, 2001) on SSRN. Here is the abstract:
Hellman on the Role of Intent in Discrimination Deborah Hellman (University of Maryland - School of Law) has posted It's Not the Thought that Counts on SSRN. Here is the abstract:
Johnsen on Rehnquist and Abortion Dawn E. Johnsen (Indiana University School of Law, Bloomington) has posted Abortion: A Mixed and Unsettled Legacy (THE REHNQUIST LEGACY, Craig Bradley, ed., Cambridge University Press, 2006) on SSRN. Here is the abstract:
Sunday, July 03, 2005
Legal Theory Lexicon: The Attitudinal Model
This post in the Legal Theory Lexicon series provides an introduction to the attitudinal model and to some possible criticisms and modifications of the model. We will also explore the implications of the model (and extensions of the model) for judicial selection. As always, the Lexicon is aimed at law students—especially first-year law students—with an interest in legal theory. As is usually the case, this Lexicon entry is covering a complex topic in just a few paragraphs. For a full and accurate description of the attitudinal model, consult the sources in the References at the end. In particular, be warned that my version of the “attitudinal model” has been simplified and modified for presentation to a legal audience! A Simple Version of the Attitudinal Model Let’s begin with a very simple version of the attitudinal model. This version of the model will be very schematic. We need to begin by introducing the notion that political attitudes or ideology can be “measured” or “represented” as a “real number” which occupies a position or point on a “real line.” For example, the real line could begin at 0.0 and terminate at 1.0, with 0.5 as the midpoint. What do these numbers represent? At this point, we don’t really need to answer that question. The numbers might represent general political ideology. In that case, the origin (or “right-most” position) on the line would represent a conservative (or “right-wing”) political ideology and the terminus (or “left-most” position) on the line would represent a liberal (or “left-wing”) political ideology. But we could also model judicial attitudes towards a specific issue in the same way. For example, the origin could represent a pro-national power attitude, and the terminus could represent a pro-state’s rights attitude. For illustrative purposes, I will use the conservative-liberal scale for the remainder of this post. Figure One illustrates the idea of a real line ranging from 0.0 to 1.0: __________________________________________________ Left (0.0)_____________________________Right (1.0) Figure One: A Real Line Our very simple model of political ideology is one-dimensional. Of course in the real world, political ideology may be multi-dimensional. Representing a multi-dimensional political ideology space as if it were a one-dimensional real line might be a problem, but it might not. It might turn out that a one-dimensional model does a good enough job of predicting political behavior, and that multidimensional models become unuseably complex if the really map onto the actual attitudes of political actors. Let us set this problem to the side, and assume that the one-dimensional mode is “good enough” to get the job done. Remember, all of this is just for purposes of illustration. Each judge (or court) occupies a position on this real line. The most conservative possible judge would be at the right-most point (1.0) on the line; the most liberal judge would be at the left-most point (0.0). Applying the Model to the Supreme Court So let’s apply the model to the Supreme Court. Our hypothetical court consists of nine justices, each of whom will be represented by a one or two letter designation: _____St__G___Br___So___O___K______R__Sc_____T______ Left_________________________________________Right Figure Two: The Composition of the Current Supreme Court The attitudinal model assumes that judges decide cases in accord with their political attitudes. How does that work? The Supreme Court votes by simple majority to affirm or reverse. When a majority of Justice’s join a single opinion it becomes the “Opinion of the Court” and has binding vertical stare decisis (precedential) effect on lowers courts. Let us assume that any given decision the Court makes (consisting of the mandate plus the legally binding effect of the Opinion) can assume a value on the real line. (We might want to assume that decisions affect the position of the whole policy system on the line. Let’s just set that issue aside for our simplified discussion.). Because our very simple version of the attitudinal model predicts that each Justice will vote his or her attitudes in each case, the “median” justice has a very important role to play on the Court. Why? Because the median justice will always be in the majority. For example, in Figure Two, Justice “O” would always be in the majority, whether the vote be 9-0, 8-1, 7-2, 6-3, or 5-4, either to affirm or to reverse the decision of the lower court being reviewed. Of course, in the real world the “median justice” isn’t always in the majority. There could be any number of explanations for that fact that would be consistent with the basic thrust of the attitudinal model. One possibility is that there are several different issues (dimensions of political ideology) and that a judge who is to the left on one issue could be to the right on another issue. For example, a judge who is to the right of median on federalism issues could be the median justice on criminal law issues. Let’s set aside this issue and continue with our exploration of the model. An Elaboration of the Model As we’ve already observed, some Supreme Court decisions are 9-0, but some are 8-1, 7-2, 6-5, and 5-4. Some cases produce a single “Opinion of the Court” joined by all of the Justices, but others produce fragmented opinion structures, with some justices concurring separately or dissenting separately. How might the attitudinal model explain these phenomena? Let’s take the 9-0 decision first. How could the Supreme Court be unanimous, given our simple attitudinal model? One reason for unanimity might be that the decision below is outside the range of attitudes on the Court. For example, let X represent the position occupied by the lower court’s decision, and let the positions of the Justices remain as in Figure Two: __X__St__G___Br___So___O___K______R__Sc_____T______ Left_________________________________________Right Figure Three: Unanimous Reversal In Figure Three, the lower court’s decision X occupies a point on the real line to left of the left-most Justice (Justice “S”). So all nine Justices will vote to reverse X. It is easy to see how we can produce the other vote combinations by moving the position of X. What about the opinions? What determines who joins which opinions? Of course, it is possible that the space of possible opinions is such that it will make no difference to the behavior of lower courts how the opinion in the case is written. (Imagine that the issue is a simple binary, yes or no, issue.) In that case, the decision will be unanimous and there will be a single opinion. But it would also be possible that two different rationales could be given for the result. Suppose that one of the possible rationales occupies the same point on the real line as does Justice “St” and that another occupies the same position as Justice “G”. We would then predict that the Opinion of the Court will be the one that occupies the “G” point. Why? Because each of the judges to the left of G would prefer an Opinion that identifies the point associated with “G” as the “legal rule” to an opinion that identifies the point associated with “St” as the legal rule. There are eight judges at or to the left of “G” and therefore, “G” and not “St” would be joined by at least 8 justices. For simplicity’s sake, let’s assume that the Justice who occupies “St” would right a separate opinion in these circumstances. (In the real world, the “G” opinion might be so close to St’s preferred position that St would not bother to write separately.) There could be another possible reason for unanimity (but not for any of the other possible voting patterns. It might be that some cases are such that they have no attitudinal valence; the issues involved are purely judicial “housekeeping” questions, or they are issues on which persons with any possible judicial attitude would agree. Criticisms of the Attitudinal Model The attitudinal model can be criticized in various ways. In the pure and simple form that we have explored, the model assumes that ideology does all the explanatory work, but that assumption is probably incorrect. It is likely that Supreme Court Justices decide in part on the basis of legal reasons, even when the result that is legally required is inconsistent with their ideology. The attitudinal model can absorb this criticism, however, by simply narrowing its scope of application. Political ideology could explain why the Justices vote as they do in those cases where the law “underdetermines” the result—allowing “room for interpretation” or “discretion.” Even the Supreme Court may be constrained by the text of the Constitution or of federal statutes in various ways. Lower courts (the United States Courts of Appeal, state supreme and intermediate courts, and trial courts) are likely to be further constrained. For example, lower courts may be constrained by the doctrine of vertical stare decisis and intermediate courts of appeal may be constrained by horizontal stare decisis. If these “legal” constraints do exist, they show that the attitudinal model has a limited domain of application—but advocates of the model may not intend for it to apply (in its strongest form) except to the Supreme Court. Another criticism of the simple attitudinal model is that it fails to consider the interaction between the Courts and other actors within the system. Suppose, for example, that the Supreme Court decides an issue of statutory interpretation in accord with the ideological preferences of a majority of Supreme Court Justices but in a way that would prompt Congress (and the President) to pass a new statute that overrode the Court’s decision. Recognizing this possibility, the Court might decide the case so as to produce the outcome that came closest to the preferences of a majority of Justices without provoking Congress to pass overriding legislation. Once again, however, the attitudinal model can absorb this criticism. The attitudinal model might need to be modified (by game theory) to take this criticism into account, but the central assumptions of the model would not be undermined in a serious way. Conclusion Law students focus heavily on the internal perspective—especially in the first year of law school. That doesn’t mean that law students aren’t introduced to the realist picture of law that lies behind the attitudinal model. They are! But a rough and ready introduction to legal realism and the view that judicial attitudes influence judicial behavior isn’t really sufficient. Every legal theorist needs a basic grasp of the attitudinal model—whether they ultimately decide to reject the model or not. References
Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2001). Glendon Schubert, The Judicial Mind (1965) Glendon Schubert, The Judicial Mind Revisited (1974) Harold J. Spaeth, An Introduction to Supreme Court Decision Making: Revised Edition (1972) Saturday, July 02, 2005
Law & Society Blog on the O'Connor Vacancy and the Rule of Law Check out Weaken the Court, Strengthen the Rule of Law on Law & Society Blog. Here's a taste:
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends two books by Sandra Day O'Connor:O'Connor was not a "theoretical" justice, but she certainly is an important historical figure in American jurisprudence. Download of the Week The Download of the Week is Can Contract Theory Ground Morality? by Philip N. Pettit. Here is the abstract:
Friday, July 01, 2005
Tamanaha on the O'Connor Vacancy Check out this very fine post by Brian Tamanaha on Balkinization. Here's a taste:
O'Connor's Importance on the Court
O'Connor has been the swing justice in many important cases. That makes her resignation especially salient to those who view the Supreme Court through the lens of political ideology. From abortion to affirmative action, O'Connor's replacement has the potential to shift the balance of the Court on a variety of "hot button" issues. A Closely Divided Court, The Mission to Make Everything Come Out Right As I was browsing a few months ago, I came across two stories, both courtesy of the amazing Howard Bashman, that highlighted the dysfunctionality of the current Supreme Court. The first story was this article, commenting on Jonathan Turley's advocacy of expansion of the Supreme Court:
Two Scenarios
Second, a stable supermajoritarian results-oriented court is likely to be predictable. This predictability does not derive from the formal written materials (by definition, a results-oriented court is not following the rules laid down), but rather is a function of the fact that the ideological makeup of the court is stable and predictable. Scenario Two: A Divided Formalist Court What about the other scenario? Imagine now that we have a court that is closely divided on ideological grounds, but which consists of judges who share a commitment to the rule of law principle that cases should be decided on the basis of the rules laid down, rather that policy preferences. Let's assume that even formalist judges are influenced by their ideological preferences. The formal materials underdetermine outcomes, especially in the case of broad constitutional provisions like the equal protection, due process, and free speech clauses. So, a closely divided formalist court will produce 5-4 decisions, when different ideological lenses produce different interpretations of what the constitution and its history mean. Nonetheless, such differences are likely to be less damaging to the rule of law when the court is composed of judges whose ideological commitments are tempered by a true dedication to the rule of law. Formalist judges who respect precedent, for example, will take 5-4 decisions as decisive. Having lost the battle, they will not continue to fight the war--continuing to dissent and maneuvering for a reversal in a future case. As time goes on, then, a formalist court will converge on rules of law, even if they do not converge on political ideology. Comparison with a Results-Oriented Closely Divided Court And how do these two scenarios compare with a results-oriented, closely-divided court. Because such a court is results oriented, its decisions cannot be predicted on the basis of the rules laid down; a results-oriented court is not much concerned with precedent, constitutional text or original meaning. Because the such a court is closely divided, its decisions cannot easily be predicted on the basis of a consistent political ideology. Of course, this does not mean that such a court is utterly unpredictable. How do you predict a results-oriented, closely-divided court? You predict the votes of individual swing justices! And of course, that is exactly what court watchers try to do. They try to get inside the psyches of the swing votes; today, that means they try to predict the voting behavior of Justices Kennedy and O'Connor. (The combination of both Kennedy and O'Connor was in the minority only twice this term. In other words, in every case but two, so long as you did not lose both O'Connor and Kennedy, you prevailed.) Assuming a certain amount of noise (generated by random or opaque internal inconsistencies within Justices perhaps), however, this method of prediction is likely to be very difficult to use as a practical guide for planning behavior. The unidimensional left-right model may be out best model for predicting votes in the Supreme Court, but that does not mean it is good enough to serve as a substitute for decisions according to the rules laid down. The difficulty of predicting is likely to be compounded if the swing justices themselves are unpredictable--as many Kennedy and O'Connor may well be. Solutions? And this brings me round to the question, "What can be done?" One answer is suggested by Jonathan Turley's proposal to expand the Court from 9 to 19. Turley's proposal would reinforce the rule of law in two distinct ways:
Second, over the long-run it is simply less likely that a 19 member court would be divided 10 to 9. With 19 members, there will be more regular vacancies and a greater likelihood of stable 12+ member majorities; more justices equals more chances that the "middle" of the court will consist of more than one or two members. The Virtue of Justice Is there an alternative? Frequent readers of Legal Theory Blog will not be surprised to learn that I think there is. The key to the solution is rejection of the realist dogma that judges must be ideological. To put this point differently, we need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility. But how could we get a formalist Supreme Court? The answer to this question can begin with the virtue of justice. As is often the case with the virtues, we can learn much by going back to Aristotle. The eminent scholar, Richard Kraut explains:
There is another important way in which Aristotle's use of the term nomos differs from our word "law": he makes a distinction between nomoi and what the Greeks of his time called psephismata--conventionally translated as "decrees". A decree is a legal enactment addressed solely to present circumstances, and sets no precedent that applies to similar cases in the future. By contrast a nomos is meant to have general scope: it applies not only to cases at hand but to a general category of cases that can be expected to occur in the future.
At this point, I know that many readers will be saying to themselves, "Solum is hopelessly naive." Some of you may think that human beings really are hard wired to be realists when given judicial power. Others may think that politics are so polarized that neither party can resist the opportunity to view the opportunities to fill vacant Supreme Court seats as the ultimate spoils of political victory. And I cannot confidently say that you are wrong. In my more pessimistic moments, I am inclined to think that the downward spiral of politicization must hit bottom and the rule of law almost utterly destroyed before political actors will come to see that the long-run costs of realist judging outweigh the short run political benefits. But I take it that Jonathan Turley's proposal to increase the size of the Court from 9 to 19 is a sign of disquiet and unease. The realization that the Supreme Court is becoming increasingly dysfunctional is growing. It is not, I think, utopian to believe that a consensus can be reached on the very great value of the rule of law. Legal realism is not written in the fabric of the universe; it is the product of human choices.
And Sasha Samberg-Champion (posted in full here at the Legal Theory Annex):
And for another reaction, check out Bloomfield's Realism and the Virtue of Justice(s) at Law & Society Blog:
O'Connor Resigns The New York Times Reports:
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