Archive for the ‘Jurisprudence’ Category

Counterfactual Legal History

posted by Gerard Magliocca

About ten years ago a popular series of books called “What If?” — consisting of a series of essays by historians — came out that looked at key turning points in world or military history and tried to describe plausible counterfactuals.  I’ve often thought that asking that question about law would make for a fun conference.  Proposing the idea, though, points up a major difference between lawyers and historians.

Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of any sort.

Lawyers, by contrast, use counterfactuals all the time.  After all, “but for” causation or “harmless error” is asking a jury or court to figure out alternative paths for litigation.  In part, this is justified because we view causation as a more probable than not question.  A looser standard for causation leads to a greater willingness to think about what might have occurred if the facts were changed.

Once again, this raises the question of what a legal historian should do.  My own work is chock full of counterfactual experiments, which may explain why some historians might not like my scholarship. Straightforward legal history is important and worthwhile, but it seems to me that law (especially constitutional law) is more contingent than we generally think, and thus we need more work exploring lost paths.  There are some terrific examples — Risa Goluboff’s book on “The Lost History of Civil Rights” comes to mind — but that’s not enough.

  November 17, 2009 at 9:58 am   Posted in: Jurisprudence   Print This Post   6 Comments

A Legal Historian’s Dilemma

posted by Gerard Magliocca

This weekend I attended the Annual Meeting of the American Society of Legal History, which is always a great event.  The best line came from Jack Rakove, who said that the search for original understanding in constitutional law is increasingly an inquiry into what “Joe the Ploughman” thought in 1787 or 1791.

A legal historian (a role I play on a semi-regular basis) faces a problem that is common to folks who straddle different disciplines.  Unlike real historians, there is an expectation that legal historians should make their work relevant for current issues.  When I present papers or try to make them more marketable for law reviews, there is always a temptation — that I don’t always resist — to have a final section that tries to draw lessons from the history and apply them to current doctrine.  If you don’t do that, then lawyers will often ask, “What’s the point of this?”  If you do take this on, though, then those with a history training will say that you are doing law office history.  I’ve never come up with a great solution to this problem,

I’ll talk about a related issue — the use of counterfactual history — in a post tomorrow.

  November 16, 2009 at 1:43 pm   Posted in: Jurisprudence   Print This Post   One Comment

Shame on the Brits!

posted by Nate Oman

By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you! Read the rest of this post »

  October 22, 2009 at 7:50 am   Posted in: History of Law, International & Comparative Law, Jurisprudence, Just for Fun, Law Practice, Politics, Weird   Print This Post   2 Comments

Exciting Addition for Public Choice Profs

posted by Danielle Citron

My colleague, Max Stearns, and Todd Zywicki of the George Mason University School of Law have just published their new course book, Public Choice Concepts and Applications in Law (West Publishing Company).  This course book, the only one of its type, introduces law students to the concepts of public choice and the implications of those concepts for a host of substantive legal doctrines and for features of institutional design of various lawmaking bodies.  Covered concepts include an general economic reasoning (including an overview of price theory), interest group theory, social choice theory, and elementary game theory. The institutional applications unit includes chapters that consider the implications of covered concepts for legislatures, the judiciary, the executive branch (and bureaucracies), and constitutions as governing documents.  The book is designed for courses or seminars in public choice or for use as a supplement courses as legislation, administrative law, or jurisprudence.  Students will love this: the book is in paperback.  Max tells me that he and Todd will be submitting the Teachers’ Manual to West this week and that West will quickly make that available to potential adopters.  In addition, they are working toward posting supporting materials for part III on line.  That part which will include various chapters on discrete topics of law to be used in connection with the bound volume and that will be updated over time.  Max tells me that he is happy to respond to any questions or comments that you have by email.   Having sat in on Max’s public choice seminar and enjoyed, and learned from, his vast body of work in the area, I have no doubt that Public Choice Concepts and Applications in Law is a great contribution to the classroom and beyond.

  October 12, 2009 at 12:39 pm   Posted in: Administrative Law, Economic Analysis of Law, Jurisprudence   Print This Post   No Comments

Using “Foreign” Law in Constitutional Interpretation

posted by Gerard Magliocca

It is not breaking news to note that a significant debate is underway about whether foreign law should be used to read our Constitution.  Separating this jurisprudential issue from the substantive controversies that often accompany the debate (on capital punishment, for example) is difficult and often breaks down into a liberal/conservative smackdown.  So I’d like to suggest a possible line of neutral research.  This might be a good student note topic.

Pick a pair of U.S. states (or multiple pairs) that differ widely in their politics.  (Say Mississippi and Vermont, or Utah and Hawaii).  Then look at each State Supreme Court’s cases interpreting its own Constitution.  How often do those cases cite the “foreign law” from the ideologically opposed state?

This would be helpful information.  Nobody would argue that it is inappropriate for a state court to cite another state court in a constitutional context because we are one nation.  But it would be interesting to learn whether this practice is common.  Critics of citing foreign law in the U.S. Supreme Court argue that the practice is wrong in part because our citizens did not consent to the processes that produce those decisions and often have different values from a country like France.  The same argument, though, could be made if the Texas Supreme Court, for example, cites a decision from Maine.  (Note that this study would work best in states where amending the constitution is relatively hard.)  If states like Texas routinely cite states like Vermont in constitutional cases (not garden-variety common law cases), then the argument against doing so at the federal level would be undermined.  And vice versa.

  October 5, 2009 at 6:55 pm   Posted in: Jurisprudence   Print This Post   16 Comments

The Policy Arguments for and Against Driving on the Right Side of the Road

posted by Nate Oman

Generations of law professors have always insisted that there is some class of rules where the particular content of the law is less important than that we have some clear answer to a question. The paradigmatic example is a rule specifying which side of the road one ought to drive on. The decision, so the argument goes, is entirely arbitrary so long as we all pick a side.

Not so it would seem. Read the rest of this post »

  August 24, 2009 at 8:04 am   Posted in: Current Events, History of Law, Jurisprudence   Print This Post   8 Comments

Traditional v. Economic Analysis

posted by Lawrence Cunningham

To debate over traditional versus economic analysis in law (aka as fairness v. welfare, deontology v. efficiency and normative v. utilitarian), in the coming law review submission season, I’ll submit evidence from torts opinions of Judges Benjamin Cardozo and Richard Posner (I reported other aspects of this research here and here).

Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and many prescribe its use, especially in tort law, where such analysis is most successful. Skeptics question the method’s descriptive accuracy and normative appeal, compared to traditional legal analysis, also making particular contributions to tort law.

While scholars use theoretical, philosophical and doctrinal techniques to defend positions, my new Article’s novel evaluation considers how the methods fare in opinions of two judicial exemplars of the contending conceptions: Cardozo, quintessential traditionalist, and Posner, avatar economist.

Comparative analysis of those opinions, the most ubiquitous in current Torts casebooks, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law. Selections from my Article’s Introduction follow.

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  July 27, 2009 at 12:36 pm   Posted in: Jurisprudence, Tort Law   Print This Post   10 Comments

Canonical Statutes

posted by Gerard Magliocca

There’s been a lot of discussion recently about the idea that certain statutes (whether you call them canonical, super-statutes, or super-duper statutes) are now part of the Constitution.  This idea comes from the British Constitution, where certain statutes (The Reform Act of 1832, the 1911 Parliament Act) are considered fundamental and not subject to repeal even though formally they could be.

I tried to put together a list of what statutes might qualify for this exalted status.  Here’s what I came up with:

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  June 29, 2009 at 5:41 pm   Posted in: Jurisprudence   Print This Post   10 Comments

Science and Law

posted by Gerard Magliocca

During the Bush Administration, there was a lot of concern expressed about how religious faith was distorting policy judgments on issues such as stem-cell research.  I think these fears were overblown (with apologies to Andrew Sullivan).  What surprises me, though, is that people do not talk much about the opposite problem — how science can distort the law.

There are two reasons why this should be of concern.  First, science can be . . . er . . . wrong.  It is more accurate to say that science is always incomplete, but sometimes that incompleteness can be so serious that the conclusions drawn are unreliable.  Second, science cannot answer ethical issues. Something could well be scientifically valid but morally wrong.  Here are a few examples:

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  May 29, 2009 at 7:52 am   Posted in: Jurisprudence   Print This Post   6 Comments

Poll on Famous Torts Cases and Judges

posted by Lawrence Cunningham

Would readers take a quick poll on famous torts cases and judges stemming from my work “Cardozo and Posner: A Study in Torts” (noted here and here)?    Those judges are the first and second most consequential on tort law measured by opinion frequency in 20 current Torts casebooks.  Both are legendary judges with particular recognition in the law of torts.  

Cardozo’s torts opinions are canonical: 10 appear in the books, 7 in at least 1/4 of them, and all but 1 appear in at least 3 books.  Posner’s opinions enjoy more sporadic interest: 25 opinions appear in the books, only 2 in at least 1/4 of them, and 20 appear in only 1 or 2 books.  

My analysis inter-acts these opinions, in their practical, theoretical and pedagogical contexts, to hypothesize explanations for this differential status.  A simplified version of the thesis: Cardozo’s traditional doctrinalism, supplemented using old-fashioned rhetoric, wins out over Posner’s contemporary economic supplementation of legal reasoning.  

Out of curiosity, I list below the 10 Cardozo opinions and a sampling of Posner opinions and wonder if readers would comment whether they recognize the opinions and, if so, what stands out about them.

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  May 20, 2009 at 7:44 am   Posted in: Jurisprudence, Tort Law   Print This Post   4 Comments

What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice

posted by Daniel Solove

There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.”  He writes:

What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30″ side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.

Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.

In The Concept of Law, H.L.A. Hart famously observed:

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  May 13, 2009 at 7:50 pm   Posted in: Constitutional Law, Jurisprudence, Law and Humanities, Legal Theory, Politics, Supreme Court, Uncategorized   Print This Post   One Comment

A Right to Be Punished?

posted by Michael Madison

From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

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  May 12, 2009 at 1:29 pm   Posted in: Civil Procedure, Criminal Law, Criminal Procedure, Current Events, Jurisprudence   Print This Post   16 Comments

Smart. Smart! Smart?

posted by Dave Hoffman

One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue.  Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.

It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance.  Rob Kar, in her defense, writes:

“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.”

I’m not sure that Prof. Kar is entirely serious here, but his post was picked up by TPM in its influential roundup, which noted the spreading of the idea that Sotomayor was “too temperamental–and not intelligent enough–” to be a Justice.

There’s plenty wrong with this mindset. Not least, as Bill Stuntz points out, “[intellectual] horsepower alone isn’t enough to produce a lasting impact on the law.” Vivid writing matters, as does judgment, and an appropriate sense of judicial role and temperment.  And, since the Justices are the highest profile lawyers in the country, so does personal history and demographics: lawyers should have professional models, to guide them in making hard decisions in the absence of judicial oversight.

As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest.  Or at least someone who understands that smartness correlates with wisdom about as well as law does to justice.

  May 6, 2009 at 6:13 pm   Posted in: Constitutional Law, Jurisprudence, Sociology of Law, Supreme Court, Uncategorized   Print This Post   7 Comments

Posner’s Anxiety, Cardozo’s Influence

posted by Lawrence Cunningham

Harold Bloom’s The Anxiety of Influence is a theory of ambivalence that “strong poets” feel toward influential predecessors and techniques successors use to fight resulting anxiety of influence. One detects hints of a parallel story in Richard Posner’s encounters with Benjamin Cardozo.

Bloom highlighted Wordsworth’s struggle with Milton. The thesis is that poetic influence is no simple transfer of method from strong predecessors to strong successors. The process makes life difficult for successors when predecessor influence is so hefty that strong successors cannot absorb it passively. They fight to avoid having predecessor’s power subordinate the successor to the status of imitator.

Strong successors fight the anxiety of influence to secure creative space. The fight is hard, given how predecessors influence not only a successor’s world but the successor’s contemporaries, equally under the influence that produces the anxiety. Strong successors cannot ignore strong predecessors but cannot passively absorb them. Strong predecessors must be reread (even misread), revised, undone, and completed—and still their shadow persists.

Posner may be Wordsworth to Cardozo’s Milton, or so I speculate in the conclusion to a draft article called Cardozo and Posner: A Study in Torts (companion to my 1995 Cardozo and Posner: A Study in Contracts). Bloom posits four phases of the process strong successors endure to battle the anxiety of influence against their strong predecessors, that I adapt and rename: (1) revising Cardozo down; (2) completing Cardozo; (3) undoing Cardozo; and (4) the haunting Cardozo.

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  May 5, 2009 at 3:16 pm   Posted in: Jurisprudence   Print This Post   5 Comments

The History of the Conservative Legal Movement

posted by Nate Oman

Crooked Timber is going to be hosting an online symposium on Steve Teles book The Rise of the Conservative Legal Movement. They have what looks to be a good line up and first out of the gate is Jack Balkin. Check it out.

  April 27, 2009 at 11:24 am   Posted in: Blogging, Book Reviews, Constitutional Law, Jurisprudence   Print This Post   No Comments

The OLC Memos

posted by Gerard Magliocca

I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.

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  April 17, 2009 at 8:35 am   Posted in: Jurisprudence   Print This Post   3 Comments

The Separation of Church and Market?

posted by Nate Oman

Over at the NYT’s Think Again blog Stanley Fish has a post on the Obama Administration’s contemplated reversal of the so-called conscience clause, which allows medical professionals to refuse to provide otherwise legal procedure when they have religious objections. Fish presents the issue as pitting the demands of a neutrally applicable law against the demands of personal conscience. He writes:

In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws ­ laws not promulgated with the intention of affronting anyone’s conscience ­ the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Of course Fish doesn’t quite get the law right. While he is correct that generally claims that the constitution requires the exemption of religious believers from neutrally applicable laws has been a loser in court, the Justices have also been quite clear of late that despite this hostility, it is fine for law makers to create such exemptions as a matter of non-constitutional law. This is my understanding what the Bush Administration did. No matter. We don’t read Fish for the constitutional law anyway. Far more interesting is his connection of the debate to the broader issue of religion in a liberal democracy:

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  April 13, 2009 at 9:31 pm   Posted in: Civil Rights, Contract Law & Beyond, Jurisprudence, Politics, Religion   Print This Post   16 Comments

The Real Face of Shar’ia

posted by Nate Oman

Generally speaking, when Americans hear about shar’ia it conjures up images of bearded and turbaned Taliban executioners gleefully stoning women to death in an Afghan soccer stadium. It is an unfair stereotype of a great legal tradition, and it is also one that misses some of the most important issues that shar’ia raises for the modern world. As usual, if you want to find the real action follow the money.

In a nutshell, there is a lot of money sloshing around the Islamic world. 20 percent of the world’s population is Muslim and at least part of the population sits atop oil fields that churn out an enormous amount of cash every day. What is an observant Muslim, one who cares about Islamic strictures against usury to do? Islamic law forbids the taking of interest, but certain transactional structures that allow some return in exchange for tying up capital are allowed. For example, a straight out purchase-money loan with interest secured by a mortgage on a the purchased house would violate Islamic injunctions against usury. On the other hand, if the bank buys the house, leases it to the resident for a period of years, followed by the resident’s purchase of the house at the expiration of the lease for a nominal sum, it does not violate the injunction. The game in Islamic finance is to come up with ways of structuring transactions so as to generate an attractive rate of return for investors without running afoul of the strictures of shar’ia. The result has been a cottage industry of banks and lawyers experimenting with various transactional structures and then rushing to find a reputable Islamic legal scholar willing to issue a fatwah validating the deal for Muslim investors.

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  September 5, 2008 at 10:11 am   Posted in: Contract Law & Beyond, International & Comparative Law, Jurisprudence, Religion   Print This Post   10 Comments

I Trust NFL Referees More Than I Trust Federal Judges

posted by Erik Lillquist

Or at least, I have more faith in their neutrality than I do in the neutrality of judges.

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think that these some of these similarities are in areas that do not refelct well on either judges or umpires, and that, when you compare NFL officials and judges, you have a lot more reason to trust the competence of NFL officials than those of judges. And that’s mainly because (unlike Somin) I think judges and umpires have similar incentives and that the incentives of NFL officials are better.

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  August 4, 2008 at 10:00 pm   Posted in: Jurisprudence   Print This Post   7 Comments

Originalism and the Virtue of Constitutional Piety

posted by Nate Oman

Over the weekend, I loaded my iPod with a lecture by Larry Kramer and listened to him talk popular constitutionalism while I mowed the lawn. At one point, he went out of his way to insist that he was “profoundly anti-originalist,” a statement that he qualified by saying “if by originialist you mean that we should do something just because that is what the founders said or intended.” My first reaction was that Kramer was responding to a straw man. Originalism is not a form of mindless filial piety, it is a theory of textual meaning and adjudication. The notion that the meaning of a legal text is best construed by reference to the times in which it was written, and that judges are bound by rule-of-law values to ground their decisions in that meaning seems like a thoroughly respectable jurisprudential theory. As I emptied the grass clippings into the compost pile, however, I started re-thinking my reaction to Kramer’s throw-away line. Yes, he was responding to a straw man in so far as judicial or academic originalists are concerned, but surely when it comes to popular originalism there is a certain ancestor worship going on. Might there be something to be said in defense of such piety?

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  July 14, 2008 at 10:20 am   Posted in: Constitutional Law, Jurisprudence   Print This Post   28 Comments

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