Archive for the ‘Jurisprudence’ Category
Legal Fictions and Constitutional Change–Part Two
posted by Gerard Magliocca
A second fiction that is used to manage constitutional change is the “right/remedy disjunction.” Sure you have a constitutional right, the Court says. You just don’t have a remedy. This sounds better than having no right at all, but upon reflection it is not if there will be never be a remedy.
Some leading candidates in this category are Marbury, Worcester v. Georgia, Giles v. Harris, Perry v. United States, and Ex Parte McCardle (sort of). All of these cases left the right at issue intact but found creative ways to say that there was no remedy. I’ll go through some more techniques later this week.
May 1, 2013 at 8:45 am
Posted in: Jurisprudence, Uncategorized
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Legal Fictions and Constitutional Change
posted by Gerard Magliocca
Enough with the anti-partisan principle already! I hear you.
I was asked a few months ago to write an essay on “constitutional change” for a book about the Constitution. After scratching my head, I decided that the best way to approach this topic would be to describe various fictions that the Supreme Court uses to make (and conceal) dramatic constitutional change. The next batch of posts will about that subject.
Let’s start with a famous example. In Brown v. Board of Education, the Supreme Court held that racial segregation of public schools was unconstitutional. Chief Justice Warren’s opinion emphasized the importance of education in the Court’s decision. Over the next four years, other cases were filed challenging state segregation of facilities such as parks, golf courses, drinking fountains, etc. The Court responded with per curium opinions that invalidated those segregation policies without any explanation except “see Brown.” The fiction in Brown was that it was just about education.
This is what we might call a “dicta/holding” mismatch. In other words, the Supreme Court makes the medicine go down easier by understating the breadth of the holding in the breakthrough case and then applying the real holding without explanation. Step One is easy to understand. Step Two is necessary to avoid inflaming or antagonizing public opinion (at least that’s the best justification).
More tomorrow.
April 29, 2013 at 4:42 pm
Posted in: Jurisprudence, Uncategorized
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Stating the Facts in Judicial Opinions
posted by Lawrence Cunningham
Modern judges are responsible for reciting the facts of cases in their opinions. But before the 20th century, it was a frequent practice for the facts to be written by someone else, usually a court official (called an auditor or reporter) but sometimes by one of the advocates. [In contracts, see, e.g.,Lawrence v. Fox (NY 1859); Boothe v. Fitzpatrick (Vermont 1864); Cotnam v. Wisdom (Ark. 1907)].
The result sometimes created conflicts between what the judge appeared to assume the facts to be and the way they had been stated. That may have been a factor that led to abandoning the old-fashioned practice and having judges write their own facts. Would judges have preferred to avoid writing the facts or favor laying them out for themselves?
I wonder what was the reason for the old-fashioned approach. What were the other reasons for its displacement by the modern approach? Has it made a particularly important difference in many cases? When one sees such ancient opinions in casebooks for first year classes, what should students be told to make of that old practice as a matter of legal method? Informed insights are eagerly sought.
March 22, 2013 at 2:59 pm
Posted in: Jurisprudence
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Bright Ideas: Mark Weiner on his new book Rule of the Clan
posted by Deven Desai
Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.
His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:
A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.
The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”
I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.
Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?
Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.
So why clans now?
Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.
Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.
Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.
The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.
I think you are saying there is something about clans that helps us organize and understand our world. What is it?
It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.
By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.
Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?
March 19, 2013 at 1:47 pm
Tags: clans, Constitutional Law, international law, rule of law, terrorism, War on Terror
Posted in: Articles and Books, Bright Ideas, Constitutional Law, History of Law, International & Comparative Law, Jurisprudence
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The Language of Civic Republicanism
posted by Robert Tsai
It’s an honor to participate in this online discussion of Jim’s and Linda’s book, Ordered Liberty, which offers a theory of liberal constitutionalism that seeks to mediate tensions between rights, responsibilities, and virtue. Their work is always engaging, learned, and timely. I’m pleased to have the opportunity to share some thoughts about it.
There are many provocative concepts worth pushing on, but I thought I might begin by observing that it is possible to read their thoughtful book as requiring the use of civic republicanism as the primary language through which to fight over constitutional rights. If this is correct, I would begin by asking the question: what work does the language of civic republicanism do in their theory?
Jim and Linda posit that fostering responsibility for oneself and responsibility to others (family and community) characterizes the general project that may be undertaken by the state. At times, this “formative project” is called “securing the capacities for democratic and personal self-governance.” So, again, how much lifting does the ideology and rhetoric of republicanism accomplish?
One possibility is that civic republicanism organizes constitutional debate. It operates as a set of rules of exclusion, putting certain kinds of arguments off limits while including other kinds of arguments if they are properly constructed. Departing from communitarians and natural law theorists, Jim and Linda believe that moral arguments are permissible in constitutional debate so long as they have been translated into the language of civic republicanism: a speaker doesn’t refer to comprehensive moral doctrines, but instead resorts to some set of liberal values, or virtues.
If civic republicanism merely organizes a conversation, then it may be doing little more than establishing a range of possible outcomes, all of which might be compatible with the goal of inculcating some agreed-upon set of virtues and responsibilities. The authors’ discussion of home schooling suggests that, after taking the extremes off the table (a right to home school without qualification/ no right to home school), there are any number of possible policy arrangements that might inculcate responsibility and virtue. Similarly, in discussing BSA v. Dale, Jim and Linda don’t quite come out and say the case was wrongly decided or rightly decided, but are content to suggest ways in which the opinion might have taken autonomy and responsibility better into account. This hesitation could be treated as evidence that, once extreme solutions are taken off the table and the language of virtue and responsibility is used in some minimally proficient way, their theory is indifferent to which outcome is selected so long as the choice is defended in the right vocabulary. This vision can, in a slightly different light, resemble a procedural approach to constitutional law.
But it may seem unsatisfying for a constitutional theory not to help us choose among attractive possibilities. Can we imagine a civic republicanism that does more work, one that more strongly shapes particular outcomes? In other words, can the framework of virtues and responsibilities aid us in sifting through possibilities and identifying better solutions from among plausible ones? Perhaps, but in a pluralistic community we would need to know something more about particular responsibilities (to whom), which virtues should be maximized (since in reality many different virtues may be at stake and in tension), and whose virtues should be prioritized (more on this later) before we could assess which outcome would best facilitate a virtue-based agenda.
Perhaps what Jim and Linda offer is something short of a comprehensive theory (the authors seem skeptical of grand theories and perfectionist approaches) but more than a rule-bound approach. It is a demand that constitutional discourse occur under certain grammar rules, coupled with a handful of meta-principles. At times, Jim and Linda seem to be arguing that civic republicanism (at least the version favored by the authors that takes both rights and responsibilities seriously) yields substantive meta-norms. For instance, their critique of Sunstein’s theory of minimalism suggests they favor a strong adjudicative norm of judicial engagement. They don’t seem to think that judges should avoid controversial cases simply out of a fear of backlash; to the contrary, they believe (as I do) that judges must undertake to articulate rights as part of a duty to ensuring deliberative politics.
The authors praise solutions that neither spell out absolute rights nor deny individual autonomy. They especially like solutions of “shared sovereignty” grounded in the idea that multiple communities have a claim on individuals (see, for example, their discussion of cases involving the rights of schoolchildren or abortion), and solutions that foster dialogue among different branches of government (see their analysis of the gay marriage rulings). All of these strategies of decisionmaking may encourage deliberation, though in ways that individuals might occasionally fear, precisely because they challenge one’s worldview. What I am less certain of is what civic virtues are being maximized through shared sovereignty solutions. Is it an ideal mindset associated with citizenship?—for instance, Jim and Linda sometimes speak of “reflective” judgment. Perhaps the best legal decisions foster certain habits of citizenship, e.g., considering a viewpoint different from one’s own, consulting all communities with a stake in the outcome? Or are shared sovereignty solutions preferred on the view that multiple decisionmakers might increase the chances of better, more informed decisions, or at least culturally supported ones?
So, the upshot is this: how thick or thin, and how substantive or procedural in nature is the language of rights, virtues, and responsibility?
February 26, 2013 at 11:36 pm
Posted in: Constitutional Law, Jurisprudence, Symposium (Ordered Liberty)
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Review of Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
posted by Andrew Sutter
Abner S. Greene, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy (Harvard University Press 2012)
Don’t be alarmed by his book’s sweeping title: Abner Greene isn’t suggesting that we chuck Contracts from the law school syllabus. Rather, he has three particular sorts of supposed obligations in his crosshairs: a moral obligation always to obey the law (also known as political obligation), an obligation to defer to “the past” – be it “original meaning” or simply judicial precedent – in constitutional jurisprudence, and an obligation by public officials to be bound by the Supreme Court’s reading of the Constitution. A surprising number of theories propose the existence of such obligations in “content-independent” form – and Greene refutes them methodically, even relentlessly, one after another. One of the achievements of this book is that he manages to sound more reasonable than radical while doing so.
But while the book’s subtitle, “The Multiple Sources of Authority in a Liberal Democracy,” suggests a broader viewpoint, this book is embedded within an entirely American discourse. A reader outside the US, or even one of a comparativist bent within it, might well wonder whether Greene’s arguments are as airtight as they seem, whether they’re as controversial as he may think they are, or even what sort of philosophy this kind of book is really about.
February 10, 2013 at 11:04 am
Posted in: Book Reviews, Constitutional Law, International & Comparative Law, Jurisprudence, Religion
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Book Review: A Brief History of Judging – From the Big Bang to Cosmic Constitutional Theory
posted by Josh Blackman
J. Harvie Wilkinson, III, Cosmic Constitutional Theory (2012)
Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Much the same could be said about Cosmic Constitutional Theory by Judge J. Harvie Wilkinson, III, the latest jurist to write about his own constitutional theory—or in Judge Wilkinson’s case, a self-professed lack of a constitutional theory.
Judge Wilkinson views all theories of constitutional laws as “cosmic” in the metaphyhsical sense. “[T]he search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.” Living constitutionalism, the hallmark of the Warren Court, is “activism unleashed.” Originalism—in many respects a moderating-jurisprudence born in reaction to living constitutionalism—to Judge Wilkinson is merely “activism masquerading as restraint.” Pragmatism—the approach endorsed most prominently by Judge Posner—is “activism through antitheory.” Constitutional theories are activist all the way down, to borrow another cosmic image. So, if living constitutionalism, originalism, and pragmatism are out, what is the best judicial philosophy? To Judge Wilkinson, that is the wrong question. In his view, the ideal jurisprudence is none at all. “So what is my theory?” he asks, rhetorically. “The answer is I have no theory.”
But it is not quite that simple. The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.
Elsewhere, Judge Wilkinson has written that “[w]hen a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.” Judge Wilkinson punts on these important questions quite unconvincingly: outlier “[d]ecisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”
To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and as Gerard Magliocca put it, somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Judge Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided cases any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans—will happen, and the Supreme Court will confront them.
More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.
And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”
Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.
- Josh Blackman, Assistant Professor, South Texas College of Law
January 8, 2013 at 2:00 pm
Posted in: Book Reviews, Constitutional Law, Jurisprudence, Supreme Court
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Illegal Aliens and Natural Rights
posted by Gerard Magliocca
There have some recent federal circuit cases addressing (and rejecting) the proposition that the Second Amendment right identified in Heller applies to illegal aliens. To some extent, these courts and other commentators have tried to work out a broader understanding of what distinguishes the rights held by citizens and legal residents from those of illegal residents. What about the Fourth Amendment, for example?
Perhaps this is the legal historian in me, but this discussion sounds an awful lot like the traditional conversation about what are natural rights vs. rights that come only from positive law. In other words, if a state passed a law saying that illegal immigrants may not worship God as they please, I think we’d all agree that would be unconstitutional. Why? Because presumably we think religious freedom is a natural right (or, if you don’t like that phrase), a really fundamental right. The right to, say, a civil jury trial is not viewed in the same way. Consequently, I wonder if natural rights discourse will make a comeback through these discussions.
December 17, 2012 at 11:45 am
Posted in: Jurisprudence
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Clinton or Gillibrand for SCOTUS
posted by Lawrence Cunningham
Professor Bainbridge picked up on my post about the importance to New York of Gov. Cuomo choosing for top court appointments jurists who are pro-business, as well as agreeing with the Governor’s liberal views. The Professor notes that this is equally important for President Obama, including for the Supreme Court.
Two examples of such liberal pro-business people who would be wonderful spring to mind: Bill Clinton, though he has already said he’s too old for the job, and his wife’s successor, Senator Kristin Gillibrand (whom I would suggest for the New York Court of Appeals, though such a job doesn’t seem likely to appeal to freshly-elected U.S. Senator).
November 15, 2012 at 2:18 pm
Posted in: Current Events, Jurisprudence
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Legislative History and Statutory Interpretation
posted by Gerard Magliocca
I want to draw your attention to an terrific new article by Victoria Nourse about how to read federal statutes. Her argument is elegant and practical: Courts should construe statutes in light of congressional rules and norms. Why? Because they form the expectations that frame any ambiguous text.
Nourse gives five principal examples of congressional rules that should influence judges when they are engaged with a law (and uses cases to show how courts either get these rules right or wrong). They are:
1. Never read legislative history without knowing Congress’s own rules.
2. Later textual decisions trump earlier ones.
3. The best legislative history is not identified by type, but by specificity to the interpretive question and proximity to the textual decision.
4. Never cite legislative history without knowing who won and who lost the textual debate.
5. Congress’s rules may create ambiguity for courts but not for Congress.
Anyway, take a look. It’s well worth your time.
November 13, 2012 at 3:59 pm
Posted in: Jurisprudence
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Calling Liberal Pro-Business Judges
posted by Lawrence Cunningham
Andrew Cuomo, New York’s Democratic Governor, will have the responsibility of making two appointments to the state’s highest court, after the recent death of Judge Theodore T. Jones Jr. and the planned year-end retirement of Judge Carmen B. Ciparick (reaching the court’s mandatory retirement age of 70). A screening commission will submit a list of names to the Governor from which to choose.
Since selection of judicial nominees is the prerogative of the chief executive, few could rebuke Cuomo for seeking judges in his own likeness. The Governor may prefer to appoint judges with liberal political, religious or social views without regard to other factors, such as a judge’s attitudes toward business.
Yet selections should be guided by the public interest, which may mean using broader criteria. As an extreme example, Mario Cuomo, when he was New York’s governor, deliberately appointed both Democratic and Republican judges to the court on the grounds that quality and balance were more important than quantity and ideology. Given New York’s role as a leading center of international commerce, however, there is a good case that the public interest calls for judges who understand the needs, values and realities of business.
When business people make contracts in New York, they want to know that the courts will uphold them as written and not rewrite them based on a judge’s notions of what is good for the parties. When corporations are formed in the state, entrepreneurs need flexibility and deference without the fear that courts will second-guess how they organized their companies or their business judgments. Judges who understand such business realities reinforce New York’s appeal as a commercial center and may be classified as “pro-business.”
Critics of the Supreme Court have politicized the concept by associating it with conservative thought: Republican justices are portrayed as pro-business, Democrats anti-business. Such an environment begs the question whether there is such a thing as a liberal judge who is also pro-business.
There is not necessarily anything conservative or liberal about being pro-business. True, two justices on the far left, William Brennan and Thurgood Marshall, showed a strong anti-business ideology. But other Democrats, including John Paul Stevens and Byron White, are not so readily classified, and Stephen Breyer’s opinions are quite business-friendly. Furthermore, many Republican justices, such as Sandra Day O’Connor and Potter Stewart, were not invariably pro-business.
The same has been true among judges on the New York Court of Appeals. Leading examples are former Chief Judges Stanley Fuld and Judith Kaye. Fuld was a progressive with Dewey-Republican leanings; Kaye is a Democrat with practicality and common sense. Fuld wrote an influential opinion (Walkovsky) upholding limited liability for corporate shareholders even when a business was structured for that sole purpose. Kaye wrote the important opinion (Levandusky) that applied the deferential business judgment rule to decisions made by the boards of co-operative homeowners’ associations.
The screening commission and the Governor would do well to look at a class of jurists: experienced business lawyers. Alas, other than Robert S. Smith, the judges on New York’s Court of Appeals lack such experience. Governor Cuomo has a chance to correct that deficiency, even while appointing judges who share his Democratic values.
Co-Op readers can help by leaving suggested nominees on the Comments section below!
Hat Tips: Stephen Bainbridge, Lester Brickman, Stephanie Cuba, Jeffrey Manns, John McGinnis and Stewart Sterk.
November 13, 2012 at 2:05 pm
Posted in: Corporate Law, Courts, Current Events, Jurisprudence
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Natural Law Psychology, Human Nature, and Plato’s “Meno”
posted by John Mikhail
As several commentators have noted, one of the most provocative aspects of Normative Jurisprudence is Robin West’s willingness to take a fresh look at the history of natural law theorizing and to identify valuable insights from that tradition that could be used to promote a “progressive natural law jurisprudence.” Robin distinguishes two natural law traditions: (1) an ethical natural law movement (“natural law ethics”), which is focused on the common good and its relation to human nature; and (2) a jurisprudential natural law movement (“natural law jurisprudence”), which is focused on the connection between law and morality, and in particular on the meaning of the maxim, lex iniusta non est lex (“an unjust law is not a law”).
Robin’s primary objective is to focus renewed attention on natural law ethics and its orientation toward the common good. She makes a strong case that legal theory has suffered by failing to take seriously the content of the common good that just laws should promote and its relation to intrinsic human needs, capabilities, and aspirations—all topics to which natural law ethics has made notable contributions. In one of many eloquent passages, Robin writes that “the antipathy of liberal and progressive lawyers to natural law ethics is a sturdy stool that rests on three legs. The first is liberalism’s commitment to state neutrality toward the good and the good life. The second is contemporary neo-natural lawyers’ embrace of an illiberal understanding of sexuality and simultaneous insistence on a reflective method that defies ordinary forms of rebuttal. The third is progressive disdain for any and all debate regarding human nature, and inferences regarding the content of need, and the content of basic human goods that might be drawn from a tentatively held description.” As Robin concludes, none of these seems like a good reason “for neglecting the development of a progressive or liberal interpretation of natural law claims” (50).
I am inclined to agree with Robin on all these points, in particular her criticism of the absurdly repressive sexual morality espoused by some prominent neo-natural lawyers. In this post, I would like to take her incisive analysis one step further by highlighting a third, related movement in the natural law tradition, which also is central to that tradition, yet which also has not received adequate attention from legal scholars, although this may be starting to change. Adapting Robin’s terminology, one might call it the psychological natural law movement (or “natural law psychology”). In what follows, I will briefly sketch one of the most influential historical arguments for natural law psychology. I will then offer a few tentative thoughts about how it might bear on aspects of Robin’s project.
Broadly speaking, natural law psychology is a theory of human nature that holds that human beings possess an inherent sociability, natural moral sentiments, and innate powers of moral discernment. Put in these terms, the theory is capacious enough to encompass a wide range of thinkers, including Aristotle, Aquinas, Grotius, Kant, the moral sense theorists of the Scottish Enlightenment, the “founding fathers,” and early feminist writers, such as Mary Wollstonecraft. Here, my focus will be elucidating one of the theory’s classical expressions in antiquity, which can be found in Plato’s Meno. In that dialogue, Socrates seeks to convince a skeptical Meno that an untutored slave boy knows principles of geometry and ethics, even though he has never been taught these subjects. Socrates does this by asking a series of probative questions designed to elicit the boy’s innate knowledge of geometry. Socrates succeeds in this endeavor and convinces Meno that the boy possesses many true thoughts and common notions that only need to be awakened and raised to conscious awareness. The “Socratic method” as it is sometimes deployed in law schools to degrade or humiliate students, or to make them feel less confident in their abilities, is thus arguably a perversion of Socrates’ own method, which was designed (or at least can be plausibly interpreted) to demonstrate how naturally capable human beings are, even those who have received little or no formal education.
Although it is tempting to dismiss it as far-fetched or antiquated, Plato’s argument from the “poverty of the stimulus” in the Meno is, in fact, one of the most powerful and enduring philosophical arguments of all time. With only minor modifications, it remains one of the dominant paradigms in the contemporary cognitive sciences, whose central problem is often a reformulation of Plato’s question: “how does the human mind get so much from so little?” Plato’s specific answer—recollection from another life—has long since been discarded and replaced with more credible alternatives, rooted in evolution, genetics, and complex organism-environment interactions. Nonetheless, at a certain level of abstraction, scientists have not progressed much farther in their basic grasp of how learning and development occur in each individual.
For example, in the seventeenth century Descartes demolished the neoscholastic theory of vision by arguing, in a Platonic vein, that human beings were “natural geometers” who managed the difficult task of depth perception by relying on unconscious geometrical computations. Today, many leading psychologists, such as Susan Carey, Alison Gopnik, Kiley Hamlin, Amanda Woodward, Karen Wynn, Fei Xu, and one of my own mentors, Elizabeth Spelke, continue to conceive of the basic problem of cognitive development across a variety of domains in essentially similar terms. The central challenge is to explain the “massive mismatch” between the rich outputs of the mind and the sparse and ambiguous information available through the senses. Generally speaking, the best answers rely on some theory of natural cognitive endowment (whether called core knowledge, inductive biases, Bayesian priors, or something else) to explain how the mind draws these inferences.
Even on this limited basis alone, then, Robin seems correct to insist that progressive legal scholars should stop ignoring the concept of human nature or pretending it does not exist. Instead, they should consider rolling up their sleeves and engaging with the modern scientific literature on human nature, including, by parity of reasoning, research on intrinsic human moral capabilities, sentiments, values, and needs. For these and other reasons, Robin also seems correct to criticize the dominant pattern of liberal and positivist jurisprudence that embraces a conception of human nature that is “individualistic, atomistic, differentiated, and so lacking in common attributes as to defy attempts to describe it” (42). This criticism can be framed in the terms Robin employs so effectively in Normative Jurisprudence, but it also can be broadened to include the modern legal academy’s general neglect of the natural sociability, altruism, empathy, and moral powers that lay at the heart of natural law psychology.
October 28, 2012 at 6:34 pm
Posted in: Jurisprudence, Symposium (Normative Jurisprudence)
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The “Missing Jurisprudence” – Part 2
posted by Michelle Dempsey
In my previous post, I recounted the pay-off one might expect from the development of what Professor West characterizes as a “missing jurisprudence” – that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.
In this post, I summarize and comment upon Professor West’s account of why liberal and progressive members of the American legal academy have failed to take up the questions of the natural law tradition and make them central to their jurisprudential projects.
Adopting an illuminating trilogy of military metaphors (“friendly fire,” “self-inflicted wounds” and “incoming artiliary”), Professor West explains the reasons why such a jurisprudential orientation has been so long “missing” (“missing-in-action”?) in the American legal academy.
To capture the gist of these military metaphors, it is helpful to identify the different sides in this jurisprudential battle:
October 28, 2012 at 3:09 pm
Posted in: Jurisprudence, Symposium (Normative Jurisprudence), Uncategorized
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This is Water
posted by Meredith Render
It is both an honor and a great pleasure to participate in this discussion of Robin West’s brilliant book, NORMATIVE JURISPRUDENCE. There are so many ideas to laud in this work, many of which have been ably raised by other commentators within this conversation. But reflecting upon this work, I have been particularly struck (as I first was as a student) by Robin’s extraordinary capacity to illuminate aspects of our legal landscape that, while foundational and ubiquitous, remain invisible. Robin’s chalk-outline of a missing progressive normative jurisprudence calls to mind a parable told by the too-soon departed David Foster Wallace. In a commencement address at Kenyon College, Wallace told the story of two young fish out for a swim who happen upon an older fish. The older fish says: “Good morning boys. How’s the water?” After the older fish passes by them, one of the young fish turns to the other and says: “What the hell is water?”
In NORMATIVE JURISPRUDENCE, Robin offers us an opportunity to rethink the “water” of our analytic practices. Most significantly, she presents the possibility of a jurisprudence in which normative argument constitutes the “water” of our analytical practice. Normative argument, she argues, should occupy a central rather than marginalized role in our jurisprudence. Moreover, she observes that progressives’ absence from the normative table has relegated our jurisprudential conversations to an unduly narrow and adjudicatorally-obsessed preoccupation with explicating the law that we already have. This positivist analytic jurisprudence (or, in Robin’s helpful Benthamite parlance, “expository” jurisprudence) has consciously and perhaps even aggressively eschewed normative argument to the peril of the project of legal reform and the promotion of social justice. Robin’s point is not that the project of exposition should be set aside in favor of a project of developing normative/critical (or, again in Robin’s Bethamite vocabulary, “censorial”) jurisprudence, but rather that room should be made in the center stage of our jurisprudential tradition for normative/critical/censorial jurisprudence.
Yet within Robin’s rendering lies room for the hypothesis that the agnosticism that we take as a matter of course to be a basic precept of analytic jurisprudence is itself a tacit manifestation of a conception (or, more accurately, varying conceptions) of the good. Robin’s argument raises potential doubts about the capacity of our conventional analytic jurisprudence to maintain agnosticism about conceptions of the good. In this rendering, competing conceptions of the good are the “water” that our various jurisprudential projects are already immersed in. While we may have become acculturated to understanding and explaining the law in a way that is formally divorced from conceptions of the good (e.g. whether wise or not, our tort law is committed to a principle of corrective justice), is it nonetheless possible that we have, all the while, been swimming in it?
Of course this is not Robin’s principal point. Whether or not our existing analytic jurisprudence is capable of the moral agnosticism it formally espouses, Robin would have us draw our foundational moral conceptions (whatever their source or origin) out into the light where they could serve more prospective and ambitious (rather than merely descriptive and thereby modestly – in the service of continuity to past practice – prescriptive) ends. Nonetheless, the question of whether our analytic jurisprudential practices necessarily depend upon a conception (or conceptions) of the good seems to me to be an important one in light of Robin’s thesis. Not only does the question seem to be intimately tied to her overall picture of progressives’ commitment to neutrality that figures centrally in her argument, but if this hypothesis bears out, it strikes me that it has potential to significantly undermine potential pragmatic objections to Robin’s thesis. It is, therefore, a question that I think merits some attention. Read the rest of this post »
October 25, 2012 at 1:48 pm
Tags: jurisprudence, legal theory, Normative Jurisprudence, positivisim, Symposium (Normative Jurisprudence)
Posted in: Jurisprudence, Legal Theory
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Take that Constitution and…
posted by Heidi Li Feldman
…forget about it. I understand that some folks must continue to fight Constitutional battles, inside and outside the courtroom, even if just to try to hold the line against Supreme Court precedents and federal legislation that encroach on the most basic interests and freedoms people need. Note that I can mention these without reference to rights. Rights – another term that legal academics of all stripes tend to obsess about to the point of distraction from considering the very goods that recognized rights foster and protect. The goods are not the rights. Rights shelter goods and interests. If they are the only form of cover your adversaries will acknowledge, then you better pitch a rights tent. If representing the good or interest as covered by a right does not help further the good or interest, then don’t use the representation. Rights and “rights” are neither objectively problematic nor objectively wonderful. What’s important is which interests and goods we decide to foster collectively, how we decide this, and whether law is a suitable social method for fostering any given worthwhile interest or good. If law is an appropriate mechanism for the task, then there are interesting empirical questions about whether the law should be strongly interventionist, requiring very specific conduct to facilitate and foster these goods or interests, or whether it should be more subtle, creating background institutions and norms which increase the chance that these goods and interests will flourish.
Now, consider areas of law that start not from rights but from duties, areas like tort (publicly created duties, originating in common law or in legislation) or contracts (privately created duties, originating at the nexus of individual agreements and legal endorsement of certains types of agreement but not others – some agreements are endorsed or disqualified by courts, some by legislatures). Not coincidentally, torts, contract, and restitution have historically been grouped together as the law of obligations, in both Anglo and Continental traditions. And not coincidentally, these bodies of law presuppose interconnectedness and relationships. The foundational or mythic state of nature that animates contracts, torts, and restitution is one that assumes that people are always and inevitably embarking on relationships, sometimes on purpose sometimes accidentally. But whether they mean to get involved with each other or not, whether they set out to affect other people or not, people connect. Connection is basic. Then the question becomes, which sort of connections engender which sorts of obligations?
Obviously, one can argue for thinner and thicker versions of legal obligation and sometimes such arguments rely on philosophical theories like liberalism (neo or otherwise) or conservativism (neo or otherwise). But it is interesting to note that reflective legal scholars and lawyers engaged (knowingly or not) in normative jurisprudence regarding the law of obligations actually tend not to invoke the usual political philosophies that undergird and drive so much of the discourse about the Constitution. A hypothesis about what why that’s so: if our starting point for thinking about and creating law is connection – the inevitable ties that will arise among social creatures – our starting point is already complicated and textured in ways that cry out for more particularistic arguments than those generated by wholesale political theories of any stripe. Political theories that start from the individual rather than the connectedness of individuals can be more general and less nuanced because it is easier to oversimplify the individual than it is to oversimplify connection. Likewise, areas of legal discourse and practice that answer to broad political theories tend to obscure particularities that matter tremendously in the course of actual lived experiences.
Mary Anne Franks’s discussion of creepshots and outing anonymous bloggers reveals the significance of starting from assumptions of connection rather than assumptions of individuality. In our culture, the rhetoric of free speech and consent is premised on a particular Constitutional background. The minute somebody invokes the phrase “free speech” they will be heard as invoking the First Amendment and the entire kit and caboodle of the Constitution. This then spills over to and colors how “consent” and “privacy” get discussed – they are understood as subordinate matters, less important than and bounded by the explicitly Constitutionally acknowledged good of free speech. It is ironic that these are the terms of the debate about an episode in an environment so often characterized as thoroughgoingly social – the web and websites where people go to interact. If we all forgot about the Constitution, very different first questions might come to mind when thinking about creepshots. Namely, who is affected by the site and how? What sort of connections does it foster or stunt? Are these connections we collectively should concern ourselves with? Should we use law to structure the connections that inevitably arise from activity on the web? If so, what do the parties (intended or unintended) in these connections owe to one another, morally, ethically, and legally?
October 24, 2012 at 12:33 am
Tags: contracts, Heidi Li Feldman, law of obligations, Normative Jurisprudence, restitution, Robin West, Symposium (Normative Jurisprudence), torts
Posted in: Jurisprudence, Legal Theory, Symposium (Normative Jurisprudence), Web 2.0
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The “Missing Jurisprudence”
posted by Michelle Dempsey
It is a great honor to participate in this online symposium, discussing Robin West’s Normative Jurisprudence: An Introduction. Last month, I was delighted to participate in an event at Georgetown University Law Center, discussing this important and groundbreaking work.
At that event, I was asked to summarize and comment upon Professor West’s first chapter, “Revitalizing Natural Law.” (Mark Murphy, whose comments were posted yesterday, presented on the same panel and offered an illuminating commentary on Chapter 1 and natural law methodology generally.)
In this first of two posts, based on my comments at the Georgetown event, I will offer a partial summary of Chapter 1 of the book and comment on the aims of Professor West’s project.
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Professor West’s principal thesis in Chapter 1 is that American liberal and progressive jurisprudence has, to its own detriment, failed to take up the questions that ground the natural law tradition: namely, “What is the common good that law ought to promote?” and “How can law and legal systems best serve the common good?” This failure has created what Professor West calls a “missing jurisprudence”: that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.
So… what would be the practical effect of infusing a natural law inquiry into a progressive jurisprudence? How would the focus of this heretofore “missing jurisprudence” differ from that of the progressive jurisprudence we currently have? What, in other words, is the pay-off for developing a progressive natural law jurisprudence?
According to Professor West, the pay-off is six-fold:
October 23, 2012 at 2:01 pm
Posted in: Jurisprudence, Symposium (Normative Jurisprudence)
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Justice, Law, and Fellowship: From Coordination to Collaboration
posted by Heidi Li Feldman
“True peace is not the absence of tension: it is the presence of justice and brotherhood.” — Martin Luther King, Jr. (1955, 1958, 1961)
At the Martin Luther King Jr. Memorial, Washington DC
Dr. King spoke these words or similar ones on a number of occasions, usually when explaining the relationship between love, law, and civil disobedience. I invoke them here because of their affinity with the idea that law that successfully promotes the common good will not yield simply the absence of anarchy but the presence of fellowship.
In the first major chapter of Normative Jurisprudence, “Revitalizing Natural Law”, Robin West argues for “a reengagement of liberal and progressive lawyers with … the ethical inquiry into the nature of the common good furthered by just law.” This is a terrific project. But it is a more complicated project than either a casual reader or a sophisticated scholar might notice. There are at least two major kinds of complexity involved. One, to which West devotes some attention in the chapter, involves how to specify human good, common or individual. The other, which receives less attention, at least at this phase of the book, involves figuring out what is distinctively legal about a project to promote the common good. In this post, a bit about this second area of complexity. This is not to say that West herself does not appreciate the complexity of and need for sorting out the role of law in a quest for the common good.
West persuasively explains that just because the project of promoting the common good might also be a political one or an overall ethical one, that does not mean it is not also a legal one, a distinctively legal one, or one in which law plays a distinctive role. Throughout “Revitalizing Natural Law”, West emphasizes that achieving the common good, understood as arising from the demands of individual good, necessitates coordinated social action, of the sort law is uniquely positioned to bring about.
Individuals going it alone will not get very far in achieving their own good, notes West. A group of uncoordinated individuals who realize this problem need state-sponsored coordination, in the form of law, to ensure that each of them do better, which means that all of them will do better. Fair enough, as far as it goes. But there is a lot more to coordination, and to coordination implemented by law, than meets the eye.
“Coordination” can be understand more or less thickly. A law dictating whether to drive on the left or the right coordinates thinly. It solves a problem whose solution does not impact the good in question: keeping traffic flowing. The content of the law does not matter, what matters is having one. The activities and instrumentalities involved are understood, practically speaking, largely similarly by all the participants.
Most of the time, though, there is a thicker connection between laws governing collective action or social activity and the content of the laws themselves. Laws against polluting the environment presuppose or stipulate agreement on foundational matters, including what constitutes pollution and how to demarcate the polluters from the environment. Laws regulating research on human subjects presuppose or stipulate agreement on what is research, who is human, and what it means to be a subject of another’s study.
To approach jurisprudence as West urges means noticing and taking quite seriously the role law and legal institutions – all of them, not just legislatures, but courts and agencies and review boards and prosecutors and juries and so on – play in coordinating both the understanding and the lived actuality of the activities and instruments law references. The good is rich stuff, and to get us to it, law must make it possible for us to proceed from strategic interaction in a coordinated setting (e.g. driving on the highway) to substantive cooperation (e.g. creating a functional and legitimate banking system). That sort of cooperation rests on shared background understandings of matters basic, diverse, and particularistic. To enable such cooperation law must not only invite and permit, but also foster, collaboration on a worldview sufficiently shared so that law has a shared meaning for law makers, law appliers, law enforcers, and law abiders (not that these four actors are always distinct and separate).
The flight from ethical normativity that West identifies in Normative Jurisprudence is part of a larger flight from normativity in general – including the normativity of meaning. How much agreement on meaning do we need in order to achieve just law that furthers the common good? What sort of legal actors and institutions do we need to get that agreement? In future posts during this celebration of Normative Jurisprudence, I will continue to examine these questions. I take inquiry into them to be part of the project West urges. I also expect that there will be sharp disagreement among liberal and progressive scholars about how much shared meaning we need and what we are willing to do get it.
October 21, 2012 at 6:15 pm
Tags: Heidi Li Feldman, jurisprudence, law and meaning, legal theory, Normative Jurisprudence, Robin West, Symposium (Normative Jurisprudence)
Posted in: Jurisprudence, Law Practice, Legal Theory, Symposium (Normative Jurisprudence)
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“Normative Jurisprudence” and What Law Professors Should Do
posted by Brian Bix
(First,by way of full disclosure: I am one of the co-editors (along with William Edmundson) of the Cambridge University Press Series in which Robin’s book appears. Connected with that role, I had a small part to play in asking Robin to write the book for the Series, and in offering comments on the text prior to publication.)
Normative Jurisprudence surveys three prominent approaches within legal theory: natural law theory, legal positivism, and critical schools of jurisprudence (including American legal realism, feminist legal theory, and critical legal studies). Robin argues that these approaches all, at one time or another, have argued for, and offered philosophical grounds for, significant social change, but that they have all fallen away from that proper path. She holds up as examples of what theorists should do, Jeremy Bentham, who combined important work on abstract moral theory with crusading writing seeking legal and political reform, the American legal realists, whose jurisprudential work was combined with an agenda for legal and political change that they helped to realize in the New Deal, and John Finnis, whose modern work on Natural Law theory (e.g., Natural Law and Natural Rights (Oxford, 1980)) focuses on the importance of the common good, and a detailed argument about what it requires. To these role models, Robin contrasts the dry debates in analytical legal philosophy (mea culpa!), the cryptic postmodern writings of modern Left theorists (here Robin joins Martha Nussbaum and Terry Eagleton in suggesting that postmodern theorists have done more to undermine social reform than to support or motivate it), and the thin views of the common good in the secular and process-focused natural law theories of Ronald Dworkin and Lon Fuller
I think Normative Jurisprudence is a marvelous and important book. Like most books of its stature, it raises significant questions for further discussion. The one I will focus on relates to specialization and expertise in the legal academy.
One can take it as a given that individuals should work for social justice, and that this is true (other things being equal) whatever one’s training, career, or position. The question is whether there is something special about academics, legal academics, theorists, or legal theorists, such that we should expect more from them, perhaps because they have special relevant expertise. (Most of the writers for and readers of Concurring Opinions are law professors; perhaps we could begin by asking ourselves what special role we think we have (individually, or collectively as law professors) in relation to matters of policy and justice.)
Speaking as someone who writes in legal theory, but who has never played a prominent role in social reform, I feel a need to respond to Robin’s critique. I would argue that what most analytical theorists do best is analysis, and they (we) have no special expertise relating to advocating for social change. I do not think that analytical work should only be done if it can be in the service of fighting injustice (though when it can serve that cause, all the better). Similarly, critical theorists may have brilliant things to add to the discussions of the social construction of ideas and practices, and perhaps should offer those ideas even if they have little effect on the movement towards social justice (and even potentially a slight negative effect).
I see little reason to think that law professors (qua law professors) have any special insights about what the best society or most just world looks like, or what the best way is to get us there. Law professors may have some expertise on the distinctive benefits and problems of legal reform: what has tended to work well and less well in attempting reform through the law, the unintended consequences that can follow from trying to change behavior through legal rules, and so on. However, this is a limited (if still important) piece of the large and complex social justice puzzle.
There have of course always been law professors who were also great figures in legal and social reform and significant public intellectuals (Catharine MacKinnon is one obvious name that comes to mind). However, most of us continue to chip away on a smaller scale on matters closer to our training: doctrinal scholars do doctrine, and theoreticians do theory of various kinds — perhaps showing that conceptual analysis is inappropriate to determining the nature of law, proving the incoherence of legal normativity, explaining the true strengths and limits of analogical reasoning within law, and so on.
I join Robin in celebrating those people who have been able to construct theories that have played key roles in legal and social reform, and I join her also in encouraging those among current academics who have the potential to be the next Bentham or MacKinnon to work towards that goal. However, I remain doubtful that law professors are generally, by their nature or usual skill set, those best placed to be at the forefront of reform movements.
October 21, 2012 at 2:26 pm
Posted in: Jurisprudence, Legal Theory, Symposium (Normative Jurisprudence)
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Bo Xilai and the Rule of Law
posted by Gerard Magliocca
This blog is banned in China, but I thought I would post something about the scandal involving Bo Xilai, a senior member of the Communist Party who fell from power after allegations of corruption and murder surfaced earlier this year. I used to do some work in China as part of my school’s program in Beijing, and I remain keenly interested in what’s going on there.
When the rule of law develops in a culture, we could imagine that happening either in a top-down or in a bottom-up way. From what I remember about legal history in England, the story goes something like this. Ordinary criminal defendants got little or no process as we would understand that concept. In high-profile treason trials, though, defendants were afforded more protection because of their status and because the Crown was concerned about the legitimacy of any guilty verdict. Eventually, the innovations and practices that developed in the treason trials seeped down to the ordinary trials.
In China, the evolution is running in the opposite direction. If you’re an ordinary defendant, you seem to get some reasonable protections. (I would say, though, that this depends a lot on what part of the country that you’re in.) If you’re really important, though, you vanish into the Party’s secret justice system. Then, months later, you get a show trial where you confess. This is what happened to Bo Xilai’s wife, one of his key political hatchet men, and will probably happen to Bo himself. The thought, I guess, is that the prosecution of garden-variety crimes does not threaten the one-party state, whereas corruption among the elite does. At some point, though, this two-track criminal justice system (at least one with such a wide difference) will collapse to the benefit of the rule of law. Or so I hope.
October 11, 2012 at 12:08 pm
Posted in: Jurisprudence
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On Information Justice
posted by Mike Carroll
Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said. I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.
September 21, 2012 at 11:13 am
Posted in: Book Reviews, Civil Rights, Culture, Cyberlaw, Economic Analysis of Law, Innovation, Intellectual Property, Jurisprudence, Law and Humanities, Law and Inequality, Politics, Property Law, Symposium (From Goods to a Good Life), Technology, Trade
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