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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Sunday, July 23, 2006
Saturday, July 22, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Dred Scott and the Problem of Constitutional Evil by Mark A. Graber. Here's a blurb:
Download of the Week The Download of the Week is Terms of Use by Mark Lemley. Here is the abstract:
Friday, July 21, 2006
Welcome to the Blogosphere . . . . . . to Jurisdynamics hosted by Jim Chen with contributions from Daniel A. Farber and J.B. Ruhl. Bernstein on Lochner David Bernstein (George Mason University - School of Law) has posted Lochner v. New York: A Centennial Retrospective on SSRN. Here is the abstract:
Appointments Chairs Over at Prawfsblawg, the comments to the post entitled Faculty Appointments Chairs provide a list of the chairs are various American law schools. Barton on Teaching & Scholarship--and some comments! If you are a legal academic, you should probably read this. Benjamin Barton (University of Tennessee, Knoxville - College of Law) has posted Is There a Correlation Between Scholarly Productivity, Scholarly Influence and Teaching Effectiveness in American Law Schools? An Empirical Study on SSRN. Here is the abstract:
These five measures of research productivity cover virtually any definition of research productivity. Combined with four years of teaching evaluation data the study provides a powerful measure of both sides of the teaching versus scholarship debate. The study correlates each of these five different research measures against the teaching evaluation index for all 623 professors, and each individual law school. The results are counter-intuitive: there is no correlation between teaching effectiveness and any of the five measures of research productivity. Given the breadth of the study, this finding is quite robust. The study should prove invaluable to anyone interested in the priorities of American law schools, and anyone interested in the interaction between scholarship and teaching in higher education.
And one more issue--what about peer versus student evaluations. Again, a bit more from the paper:
More research might result in more knowledge, which might result in more effective teaching. More research might result in more knowledge, which might result in less effective teaching. More research might divert effort from teaching, which might result in less effective teaching. It is possible, however, that some of these effects might be observed with a different research design. If it were possible to do reliable assessments of the objective accuracy of information conveyed and to compare that to research productivity in the particular field, for example, there might be some correlation between productivity and teaching effectivenss (in the objective sense). But that would not necessarily correlate with student ratings of teaching effectiveness? Why not? Because generally law students are incapable of evaluating "knowledge of the subject matter." For one thing, they lack a good baseline for comparison, because the truth is that the general level of knowledge of subject-mater among legal academics is fairly shallow. And a student rarely learns enough about a subject to actually get ahead of the professor. Of course, we all know that occasionally newbie professors get caught in gaffs--but most experienced teachers learn how to avoid this--which is mostly a matter of not saying things you don't know, not mastering the subject so deeply that you can answer any question about any point accurately. But with that caveat aside, this is clearly valuable research! Highly recommended for all legal academics! Thanks Lisa Fairfax to via Dan Markel. Thursday, July 20, 2006
Thursday Calendar
Beta Version of the New Legal Theory Blog If you would like to see the new look of Legal Theory Blog, here is the URL: In addition, there is a new companion blog that will collect the Legal Theory Lexicon posts:During the "beta test," I will be requesting feedback on various design elements of the new version of the blog. I would greatly appreciate your assistance! Check out the new blog for the current set of issues! This post will move to the top of the blog until the transition is complete. Wednesday, July 19, 2006
Lemley on Terms of Use Mark A. Lemley (Stanford Law School) has posted Terms of Use on SSRN. Here is the abstract:
Ibrahim on Director Liability and the Nature of the Board Darian Ibrahim (University of Arizona) has posted The Board as a Collective Body or a Collection of Individuals: Implications for Director Liability on SSRN. Here is the abstract:
Nichols on Chinese Regulation of Religion Joel A. Nichols (Pepperdine University - School of Law) has posted Dual Lenses: Using Theology and Human Rights to Evaluate China's 2005 Regulations on Religion (Pepperdine Law Review, Vol. 34, 2006) on SSRN. Here is the abstract:
Tuesday, July 18, 2006
Young Scholars and Empirical Research There is a thoughtful post entitled Should Young Scholars Engage in Empirical Legal Research? by Lisa Fairfax at Conglomerate. Here is a taste:
Hricik on Law Blogging David C. Hricik (Mercer University - Walter F. George School of Law) has posted Ethics of Blawging on SSRN. Here is the abstract:
May on Chevron Randolph J. May (The Free State Foundation) has posted Defining Deference Down: Independent Agencies and Chevron Deference (Administrative Law Review, Vol. 58, p. 429, 2006) on SSRN. Here is the abstract:
Taslitz on the Subconscious and Rape Andrew E. Taslitz (Howard University - School of Law) has posted Forgetting Freud: The Courts' Fear of the Subconscious in Date Rape (and Other) Cases on SSRN. Here is the abstract:
Sachs on Nuclear Waste Storage and the Mescalero Apaches Noah Sachs (University of Richmond School of Law) has posted The Mescalero Apache and Monitored Retrievable Storage of Spent Nuclear Fuel: A Study in Environmental Ethics (Natural Resources Journal, Vol. 36, p. 641, 1996) on SSRN. Here is the abstract:
Berners-Lee on Net Neutrality Tim Berners-Lee has an excellent post on Net Neutrality. Here's a taste:
Monday, July 17, 2006
Meese on Monopolization and the Theory of the Firm Alan J. Meese (College of William and Mary) has posted Monopolization, Exclusion and the Theory of the Firm (Minnesota Law Review, Vol. 89, 2005) on SSRN. Here is the abstract:
Brooks on Hegal on Monarchy Thom Brooks (University of Newcastle upon Tyne (UK)) has posted No Rubber Stamp: Hegel's Constitutional Monarch. Here is the abstract:
Matwyshyn on Spam Andrea M. Matwyshyn (University of Florida) has posted Penetrating the Zombie Collective: Spam as an International Security Issue (SCRIPT-ed, Vol. 4, 2006) on SSRN. Here is the abstract:
Tehranian on Middle-Eastern Legal Scholarship John Tehranian (University of Utah - S.J. Quinney College of Law) has posted Whitewashed: Towards a Middle-Eastern Legal Scholarship (Indiana Law Journal, Vol. 82) on SSRN. Here is the abstract:
Sunday, July 16, 2006
Legal Theory Calendar
Callfor Papers: Canadian Legal Education Annual Review
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, July 15, 2006
Download of the Week The Download of the Week is Habermas's Call for Cosmpolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal by Michel Rosenfeld. Here is the abstract:
Legal Theory Bookworm The Legal Theory Bookworm recommends The Judge in a Democracy by Aharon Barak. Here's a blurb:
Friday, July 14, 2006
Brown on Plea Bargaining and Regulation of Defense Counsel Darryl K. Brown (Washington and Lee University - School of Law) has posted Executive-Branch Regulation of Criminal Defense Counsel and the Private Contract Limit on Prosecutor Bargaining on SSRN. Here is the abstract:
Gotanda on Transnational Contract Damages John Y. Gotanda (Villanova University School of Law) has posted Damages in Lieu of Performance Because of Damages in Lieu of Performance Because of Breach of Contract (Villanova Law/Public Policy Research Paper No. 2006-8, DAMAGES IN PRIVATE INTERNATIONAL LAW, Hague Academy of International Law, 2007) on SSRN. Here is the abstract:
Rosenfeld on Habermas on Patriotism Michel Rosenfeld (Cardozo Law School) has posted Habermas's Call for Cosmpolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal on SSRN. Here is the abstract:
Somin on Raich Ilya Somin (George Mason University - School of Law) has posted Gonzales v. Raich: Federalism as a Casualty of the War on Drugs (Cornell Journal of Law and Public Policy, Symposium on the War on Drugs, June 2006) on SSRN. Here is the Abstract:
Thursday, July 13, 2006
Yet More on Teaching and Scholarship Orin Kerr has a very good post entitled Legal Scholarship and "the Canon" at OrinKerr.com, which quite properly questions the empirical foundation for my claim that immersion in the canon--which is required of younger teachers--leads to a parallel immersions in canon-focused scholarship. Also, Peter Spiro has a post entitled International Legal Scholarship and the Lack of a Canon, in which he observes that not all fields of law have a canon, and makes the further claim that there is no canon in international law:
Read Kerr and Spiro! Wednesday, July 12, 2006
More from Buck on Teaching and Scholarship Stuart Buck replies to my post prompted by his Teaching vs. Scholarship. I agree with almost everything in Buck's most recent post, but I wanted to say a few more words about the larger topic: Is teaching in competition with scholarship? Or a they complimentary? This issue is usually framed somewhat simplistically. Back in the day, the lay of the land might have been appoximately as follows:
I could go on and one. I really am not arguing for any conclusion here. My point is really just that the terms of the debate have changed. Tuesday, July 11, 2006
Buck on Teaching versus Scholarship Stuart Buck has a post on the old chestnut, the question whether scholarship interferes with or enhances teaching--in the context of legal education. One of Buck's points is that teaching may actually enhance scholarship:
I don't want to exaggerate. I actually agree with the Buck's core claim that teaching does enhance scholarship, but not for the reasons that Buck articulates. Teaching contracts, property, or constitutional law does not make you an expert--it does give you a broad overview of the core concepts and their interrelationships. Read Buck's post! Monday, July 10, 2006
State Decisis in a Court of Last Resort One of my favorite topics has come up over at PrawfsBlawg, where guest blogger Russell Covey has posted Are Supreme Court Justices Bound By Supreme Court Precedent? Here's a taste:
And also at Prawfsblawg, Will Baude writes:
There is something to this argument. Affording strong stare decisis effect to precedents that disregarded the Constitution would, in fact, be to elevate the status of judicial decisions above the Constitution itself. And such elevation would be inconsistent with the formal rule that the Constitution is the Supreme law of the land. In addition, giving precedents the power to overrule the Constitution would create questions of legitimacy. It is unclear whether there is any theory that would legitimate the assignment of a power to overrule the Constitution to the Supreme Court. But these same problems do not exist if we are dealing with precedents that are based on formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution. Such decisions do not involve an implicit claim that the Supreme Court may overrule or modify the Constitution—quite the contrary, they assume the opposite. Of course, it is possible to disagree about the meaning of the Constitution. We may come to believe that a prior decision—although formalist in method—involved a mistake. The question then becomes, can we legitimately give stare decisis effect to a formalist decision if we believe the decision is mistaken? The answer to this question is “yes, we can.” Once we are operating within the realm of formalist precedents, the question is not “Are we respecting the authority of the Constitution?” but is instead, “What is the institutional mechanism by which disputes about the meaning of the Constitution are to be settled?” At one extreme, we can imagine that we would entitle each and every government official the authority to decide for herself what the Constitution means. The problems with that system are obvious—it would create uncertainty, unpredictability, and instability that would undermine the rule of law. Various other possibilities exist. We could give every judge the power to interpret the Constitution de novo, with no horizontal or vertical stare decisis. That system would not be as chaotic as one which gave the authority to every official—high and low—but it would, nonetheless, be a real mess. We could imagine a system in which every Supreme Court justice has interpretive authority, but a doctrine of vertical stare decisis binds the lower courts. That system would be more stable, but would still involve shifts in constitutional meaning—as the composition of the Court changes and as individual Justices change their minds. And at the other extreme from total hermeneutic polycentricism, would be a system in which the decisions of the Supreme Court which respect that text and original meaning are given binding effect—granting earlier Supreme Courts the power to constrain the interpretations made by later Supreme Courts. This final option maximize the rule-of-law values of stability, predictability, and certainty. For more on this topic, see The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Some of my remarks above are adapted from a forthcoming piece, THE SUPREME COURT IN BONDAGE: CONSTITUTIONAL STARE DECISIS, LEGAL FORMALISM, AND THE FUTURE OF UNENUMERATED RIGHTS, which will appear in the University of Pennsylvania Journal of Constitutonal Law. Fairness, Legitimacy, and Compliance Over at Changing the Court, Aubrey Fox has a post entitled Why Fairness Matters. The post investigates compliance rates with court orders in light of Tom Tyler's work on procedural fairness and legitimacy. Here is a taste:
Sunday, July 09, 2006
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, July 08, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Judging Under Uncertainty : An Institutional Theory of Legal Interpretation by Adrian Vermeule. Here's a blurb:
Download of the Week The Download of the Week is The Economics of Open-Access Law Publishing by Jessica Litman. Here is the abstract:
Friday, July 07, 2006
More Reverse Engineering of U.S. News's Rankings by Tom Bell Tom Bell has a post entitled Scores of All Law Schools in USN&WR Rankings at Agoraphilia. Here's a snippet:
Hall & Wright on Content Analysis of Judicial Opinions Mark A. Hall and Ronald F. Wright (Wake Forest University - School of Law and Wake Forest University - School of Law) have posted Systematic Content Analysis of Judicial Opinions on SSRN. Here is the abstract:
Ricks on Non-Precedential Opinions Sarah E. Ricks (Rutgers, The State University of New Jersey - School of Law-Camden) has posted The Perils of Unpublished Non-precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit (Washington Law Review, Vol. 81, p. 217, 2006) on SSRN. Here is the abstract:
Sorenson on Resentencing Quin M Sorenson (United States Court of Appeals for the Third Circuit) has posted The Illegality of Resentencing (Duquesne University Law Review, Vol. 44, p. 211, 2006) on SSRN. Here is the abstract:
Chen on Amicus Influence on Gonzales v. Raich Paul H.S. Chen (Western Washington University - Department of Political Science) has posted Amici Curiae Influence on Supreme Court Decision-making in Gonzales v. Raich on SSRN. Here is the abstract:
Thursday, July 06, 2006
Thursday Calendar
Fowler, Johnson, Spriggs, Jeon, and Wahlbeck on Network Analysis of Supreme Court Precedents James H. Fowler , Timothy R. Johnson , James F. Spriggs , Sangick Jeon and Paul J. Wahlbeck (University of California, Davis , University of Minnesota , Washington University, St. Louis - College of Arts & Sciences , University of California, Davis and George Washington University) have posted Network Analysis and the Law: Measuring the Legal Importance of Supreme Court Precedents on SSRN. Here is the abstract:
There are some very good reasons to question the relationship between citations and importance. Take "outward importance"--the number of cases cited by a case: there are many factors that can account for outward importance. Was the opinion drafted by the Justice or was it drafted by clerks? Does it deal with an impacted field of law or does it write on a clean slate? The author's seem to believe that cases that cite many other cases are thereby likely to resolve many legal questions, but that assertion seems highly dubious. It certainly would require analysis and evidence to convince me of this claim. "Inward importance"--the number of cases that cite a case--seems like a more plausible measure, of something, but again there are problems. For example, the Supreme Court's summary judgment decisions are among it's most cited opinions, but that doesn't mean they actually are doing legal work--that depends on the controversial assumption that standards of summary judgment actually determine the outcome of summary judgment decisions, a highly contestable proposition. Cititing a case is not equivalent to being causally influenced by a case. There is another problem with using citations as a proxy for importance. Some very important cases may "settle" legal questions in a way that ends the need for further litigation. Given that case X has settled legal question Q, it may be that citizens and officials stop litigating Q. In that case, X might be a very important case--so far as the causal role of law is concerned, but not a frequently cited case! It is also somewhat surprising that the author's do not themselves cite any of the prior work by legal academics on the application of network analysis to citation networks. But with all of that said, this is an important article. Download it while its hot! Litman on the Economics of Open-Access Jessica Litman (University of Michigan) has posted The Economics of Open-Access Law Publishing (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract:
Beny on Nielsen & Albitson on Public Interest Practice Laura N. Beny (University of Michigan at Ann Arbor Law School) has posted Sample Selection, Methodology and Implications for the Have Nots: A Commentary on Professors Nielsen's and Albitson's 'The Organizational Environment of Public Interest Practice 1975-2000' (North Carolina Law Review, Vol. 84, No. 5, 2006) on SSRN. Here is the abstract:
Evans & Alexeev on Response to Rankings Jeffrey Evans Stake and Michael Alexeev (Indiana University School of Law-Bloomington and Indiana University Bloomington - Department of Economics) have posted Who Responds to U.S. News & World Report's Law School Rankings? on SSRN. Here is the abstract:
Mitchell & Tetlock on Empirical Investigation of Corrective and Distributive Justice Gregory Mitchell and Philip E. Tetlock (University of Virginia School of Law and University of California, Berkeley - Organizational Behavior & Industrial Relations Group) have posted An Empirical Inquiry into the Relation of Corrective Justice to Distributive Justice (Journal of Empirical Legal Studies, Vol. 3, 2006 Forthcoming) on SSRN. Here is the abstract:
Wednesday, July 05, 2006
Mitchell & Tetlock on Experimental Political Philosophy Gregory Mitchell and Philip E. Tetlock (University of Virginia School of Law and University of California, Berkeley - Organizational Behavior & Industrial Relations Group) have posted Experimental Political Philosophy: Justice Judgments in the Hypothetical Society Paradigm on SSRN. Here is the abstract:
Saver on Intangible Harm Richard S. Saver (University of Houston - Health Law & Policy Institute) has posted Medical Research and Intangible Harm (University of Cincinnati Law Review, Vol. 74, p. 941, 2006) on SSRN. Here is the abstract:
Tiller & Yoon on PPT & Private Securities Litigation Emerson H. Tiller and Albert Yoon (Northwestern University - School of Law and Northwestern University - School of Law) have posted Private Securities Litigation and the Courts: Positive Political Theory and Evidence on SSRN. Here is the abstract:
Sander & Rozdeiczer on Matching Disputes and Procedures Frank E.A. Sander and Lukasz Rozdeiczer (Harvard Law School and Harvard Law School) have posted Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach Approach (Harvard Negotiation Law Review, Vol. 11, p. 1, 2006) on SSRN. Here is the abstract:
Tuesday, July 04, 2006
Chafetz on Yoder Josh Chafetz (Yale Law School) has posted Social Reproduction and Religious Reproduction: A Democratic-Communitarian Analysis of the Yoder Problem on SSRN. Here is the abstract:
Monday, July 03, 2006
Call for Papers
Call for Papers: Lesbian, Gay, Bisexual, and Transgender Legal Issues
Conference Announcement: Moral Contextualism
Call for Papers: BSET 2007
Conference Announcement: Antecedents of Action
Sunday, July 02, 2006
Legal Theory Calendar
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--about what attitudes people have. 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 empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been 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, July 01, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends The Rehnquist Legacy edited by Craig Bradley. Here's a blurb:
Download of the Week The Download of the Week is Temporary Legislation by Jacob E. Gersen. Here is the abstract:
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