Category: General Law


The (Contemporary) Godfather of Comparative Constitutional Law?

Everyone probably has their list of most underrated legal scholars. At the top of my list would stand Alec Stone Sweet. I have never met him, never taken a class with him, and wouldn’t recognize him if he walked into the GW faculty lounge on Monday. But I think his work is enormously important, and enormously good.

I say this for two reasons. First, he reestalblished a dormant field of legal scholarship, comparative constitutional law. I have written before about how comparative constitutional scholarship was a vibrant subject of academic writing for much of the history of American scholarship. This was true in the early years of political science, and in the eary years of constitutional scholarship. But in many ways it died down. Stone Sweet’s book on judicial politics in France was published in 1992, right around the time that scholars were becoming interested in comparative constitutional issues again (with the recent collapse of the Soviet Empire and the creation of new constitutions in Central and Eastern Europe), and his other writings around that time serve in many ways as the first generation of recent scholarship on these issues.

Second, his writings are part of increasingly important positive accounts of judicial behavior. He has written pieces about how courts come to exercise power, how they operate in different systems of judicial review, and so on. Again, these articles were part of the first generation of recent scholarship on another important area, positive political theory.

Yet, for some reason, when I mention his articles to many who write on constitutional issues, his name is not known to them. This is a shame.


What is Comparative Constitutional Law?

Much of my blogging this next month will be about the field of comparative constitutional law. What is the field? What projects are people working on in the field? What does it matter?

For now, though, I wanted to write one brief thought that has occurred to me as I have taught my comparative constitutional law class at GW the past two spring semesters: Is comparative constitutional law just an example of constitutional theory or constitutional design?

Some parts of comparative constitutional scholarship help us understand a particular country more, perhaps. So, if you have something interesting to say about the German Basic Law, that might help us understand Germany a little more than we did previously. This is particularly so if perhaps we compare the German Basic Law and the American Constitution, assess their differences, and through this assessment we gain a better understanding of both countries.

But part of what comparing constitutions does is force us to ask first-order questions about constitutions–what they are and what they should do. If one country uses abstract review, and one country uses concrete review, we can compare their experiences, and see how different systems of judicial review operate, which countries each system works best for, and so on. This is partly about comparing countries, but just as much it is about having more data points about how different constitutional regimes work. There is nothing necessarily “comparative” about this–perhaps, then, there is just something more systematic about it than other forms of scholarship, and that might be what comparative constitutional law can contribute to constitutional scholarship–a more empirically informed version of answering some of the same questions.


Thank You

Thank you to Dan for his very kind introduction, and for giving me the opportunity to blog here for the next month. I hope to talk about a bunch of things, from the Supreme Court in the war on terror, to a few recent developments in comparative constitutional law, to a host of other topics. I hope it is a fun month!


Visitor aka Podium Fill Time

Although the customary lateral hiring deadline of March 15 has expired, and AALS lurks in the semi-distant future; yet another hiring time is upon some law schools. Academic Deans must now see what coverage gaps exist and fill them. So those seeking to enter the world of law professors may want to see whether a school has such an opening and contact the Academic Dean with a c.v., cover letter, and possibly a publication. Note: check the school’s Web site. It may have a posting with requested information. Someone took the time to write that post. They probably appreciate those who pay attention.

Still, there are reasons not to take this approach. First, these positions may have rules against ever being hired as a tenure track professor. That means one has entered the arena, but is instantly on the market with less job security than when in the private sector. Second, the fellowships out there may, stress may, provide a more structured way to enter the profession. Third, true coverage spots may require many new class preps and little time to develop the writing one needs to have when one hits AALS. So, I am not saying this approach is the best one. Nonetheless as it exists and can work, I wanted to discuss it a little.

Frank reminds me that a great post on the true ups and downs of fellowships and what one should do about entering the profession is The Real Problem with Law Teaching Fellowships by Mike Madison. Anyone wishing to enter the profession should take a read. It covers many issues that relate to but are outside the scope of this post.

Finally, as a public service, I offer the comment thread to Academic Deans of law schools (or those in charge of this task) as a place to note current needs and how to apply.


PS For those who have taken visitor spots, Faculty Lounge is compiling a list so you may wish to contact them with your information.


Kennedy v. Louisiana Argued Tomorrow

March 27th marked six months in the United States without an execution. For a nation that executed nearly 100 of its citizens only 9 years ago, this is a pretty amazing feat that has gone largely unnoticed in the popular press.

The Supreme Court hears argument tomorrow in Kennedy v. Louisiana, a case testing the Constitutionality of Louisiana’s child-rape death penalty statute. In 1977’s Coker v. Georgia the Supreme Court struck down Georgia’s death penalty statute, holding that the death penalty is an unconstitutionally disproportionate punishment for “the rape of an adult woman.” Ever since then the question left open by the opinion has gone unanswered: Is the death penalty also disproportionate for the rape of a child?

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John Yoo and Tenure

I am not a first amendment lawyer nor am I well-qualified to write about academic freedom, but I have been intrigued by the discussion of whether John Yoo can or should be fired in connection with his authorship of the infamous torture memo.

The National Lawyer’s Guild, which opposed efforts to fire Ward Churchill at the University of Colorado, has called for Yoo to be fired. Obviously, the two situations are not identical. Churchill’s views were “merely” unpopular and the investigation into his background would never have taken place but for the outrageousness of his speech. By contrast, Yoo’s speech has led to tangible results, results that the NLG claims constitute war crimes.

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Education Gap

Several posts on the mobblog about legal education at Madisonian have grappled with the basic structure of law schools. Al Brophy evokes the idea of a mini-university. Nancy Rapoport has offered that a required pre-law curriculum would improve law schools as students would have better interdisciplinary training and better writing skills. Mike Madison has asked “Why not offer undergraduate and graduate legal education programs in the same school?” Christine Hurt has challenged the liberal arts idea behind law school and suggested that schools could become specialist or generalist schools. Orly Lobel has argued that a split between the training of future professionals and future educators would better serve and reflect what law schools do. Frank Pasquale has asked whether the market has shifted such that schools need to focus on higher-level critical skills.

One idea might lurk within these views: is the undergraduate system failing such that many law students have aptitude but did not receive the training they may have received in years past?

Now, many say all law professors think law students cannot think or write well. Given that law school is supposed to push a student’s abilities to think and write to a higher level that view makes some sense. One would expect a certain amount of “we need to improve what you do” in the air. (This view can be constructive or condescending. Constructive is the way that the view makes sense). Yet, in talking with many people at a range of schools, it seems that the move to rote learning and regurgitation has produced a generation that is less armed for law school or any situation that requires independent thought and analysis. As such rather than teaching how to write a legal argument and analyze a case, many law professors may have to accomplish that task while also pointing to ways for a student to improve more fundamental skills. I could be dead wrong here. So, feedback on whether others have encountered this possibility is most welcome.

cross-posted at Madisonian


Little Help?

As has been noticed, there are a lot of us criminal law types here this month. There also seems to be, with the exception of the fascinating case that Daniel Solove noted the other day, a relative dearth of criminal law and procedure questions percolating through the courts at the moment. So I thought I would take advantage of this moment for purely selfish purposes.

I am at the earliest stages of putting together a Criminal Procedure casebook. This task has required me to reflect on my own teaching of the course and to question a lot of what I do and say in the course. I have never been terribly happy teaching Criminal Procedure; I find that the class lacks any organizing principles and that the doctrines come across as very results-driven and fact-specific. Unlike Criminal Law which I truly enjoy teaching, Criminal Procedure has often felt like a chore. I’m hoping that this project helps change that.

So I’m not going to ask you to organize Criminal Procedure for me or to outline my book. But I am curious what those of you out there who teach Criminal Procedure like or loathe about doing so. Is there a particular case or doctrine that gets you energized? Is there some part of the class that you feel compelled to teach even though you detest either the leading case, the result, or the reasoning? After the jump, my thoughts.

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Food and the Fallacy of Functionalism

As food prices skyrocket, there is growing unrest in the developing world:

Food riots have already occurred around the world, and the World Bank predicts political and social unrest over food in 30 to 40 countries. The United Nations World Food Program spends $3 billion, but needs $500 million more just to keep up. With food prices increasing as demand goes up, we look at the “new face” of hunger worldwide and what the drive for bio-fuels has to do with it

As biofuel consumption rises in the developed world, we can only expect this problem to get worse. The Wall Street Journal raises the specter of a new Malthusianism, as does the BBC.

One class of public intellectuals has always been quick to dismiss these claims as alarmist. Harking back to Paul Ehrlich’s famously false prediction of famine due to overpopulation, techno-optimists assume that human ingenuity will always come to the rescue. Worries about resource constraints have also gotten tied up in complicated politics of birth control. Debates between the Club of Rome and its critics quickly degenerated into rival futurologies, with one side predicting scarcity and the other plenty. Since prognostication is a mug’s game, the academic debate on the issue became stale for a while. Advances in science made it easy to believe that that nanotech and a new “weightless economy” could rescue us from worrying about mundane things like food and water.

Now the rise in commodity prices and general scarcity of food and fuel are generating new interest in Malthusian arguments. Before public intellectuals again get bogged down in the fruitless tech-prediction game, I hope they consider another angle on the crisis. Perhaps it’s time to reconsider economics’ extraordinarily prominent role in public policy, and to complement it with other social sciences.

Given that economics is often defined as the study of scarcity, food and fuel shortages may seem like a particularly bizarre rationale for discounting it. However, there is a narrative component of economic analysis, and an explanatory style, that makes it particularly inapt here. Consider two broad schools of sociological thought: functionalist and conflict-oriented theories. Functionalists are apt to explain how all parts of a given social order fit together, like the organs within a body (think of Durkheim’s work on “organic solidarity”). Conflict theories emphasize times of crisis and change, underscoring the ways in which different classes, professional groups, ethnic groups or states challenge one another for scarce material or symbolic resources.

Economic thought is often unapologetically functionalist. As Hirschman described its origins in the doux commerce school, one of its basic ideas is the prevalence of mutual gains from trade given comparative advantage. As individuals and groups specialize, they become more expert at what they do and more efficiently produce goods and services used by others. Gains from trade become the foundation of an economic order that promises increasing GDP, health status, and comfort.

This story has broadly described much of North America, Western Europe, and Japan. Wealthier parts of China and India have also experienced a lot of growth. But what happens when critical resources–such as oil, timber, or wheat–are in short supply? Who gets to continue growing, and who has to stop–or, worse, fall further behind? Given how quickly general technological superiority can be converted into military superiority, the stakes here are very high.

Though economists have sometimes scoffed at a lack of rigor in sociology, I wouldn’t be surprised to see sociologists turn the table and claim that economics itself reflects only one half of sociology’s classic dual viewpoints of “conflict and functionalism.” Fortunately both evolutionary economists and theorists of positional goods (like Robert H. Frank) understand how zero-sum games can make classic characterizations of market efficiency obsolete. The question now is how far to apply their insights.

I’ve argued that Frank’s views on positional goods need to become a part of the economics of health care, in part because a relatively fixed supply of doctors can mean that any group that uses its buying power to purchase disproportionately time-consuming and unnecessary levels of care threatens to divert medical care from those with less purchasing power. (In Robert Kuttner’s words, care is being allocated to profit opportunities rather than medical need.) To the extent that commodities like oil appear to have a relatively fixed supply, the same analysis may apply.


More on Pearson v. Callahan

I posted on Monday about the Supreme Court’s grant of cert in Pearson v. Callahan and its request for briefing on the question of whether to overturn Saucier v. Katz. For those of you who don’t follow qualified immunity law closely (are you really out there???) Saucier required federal courts consider Section 1983 and Bivens actions to consider the merits of the plaintiff’s claim before turning to the proffered defense of qualified immunity. Saucier has been unpopular with both lower federal courts and many of the Justices of the Supreme Court (*shameless plug* for a defense of Saucier, see my forthcoming article. *end plug*)

What’s curious about this case to me is that, although the Supreme Court has asked the parties to brief the question of whether Saucier should be overturned, I can’t imagine why either the petitioner or the respondent would care about that question. Saucier’s ordinal mandate perhaps helps plaintiffs in the long run because it requires federal courts to establish federal law rather than simply saying that the federal issue is a close one and that therefore the defendant wins on qualified immunity. Saucier is also probably defendant unfriendly in the long run because it keeps them in civil rights cases longer and likely makes it easier for plaintiffs to recover against them. (Of course, it’s also possible that law-abiding public officials want to know what that law is so that they can conform their conduct to it, but that’s a conversation for another day.)

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