Archive for the ‘Jurisprudence’ Category

The Greatest Supreme Court Opinion?

posted by Gerard Magliocca

This week in my Admiralty class I taught my favorite case–Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). This unanimous opinion, written by Justice John Marshall Harlan, held that a wrongful death action existed in general maritime law. Moragne overruled The Harrisburg, an 1886 case that followed the common law and said that there was no wrongful death remedy in admiralty. Many scholars believe that this is the best Supreme Court opinion, if by best you mean”most professional.”

Among the reasons this is worth reading (even if you don’t care about admiralty):

1.  Moragne goes into the history of wrongful death and explains why the common law did not provide a remedy.  The answer is that the “felony-merger” doctrine in England held that all property owned by a convicted murderer went to the Crown.  Thus, there could be no recovery by a private party.  Even though no such doctrine existed here, our courts blindly adopted the English rule.

2.  The Court grounds its decision to overrule its precedent by doing an exhaustive review of the erosion of the “no wrongful death” rule, by looking at state statutes, Acts of Congress, international law, and academic criticism.

3.  The Court explains why Congress’s decision to create a wrongful death remedy in international waters (in the Death on the High Seas Act) does not preclude the creation of a judicial equivalent in territorial waters where state law does not do so.  That part of the opinion involves a thoughtful discussion of federalism, statutory interpretation, and the evolution of the admiralty remedy of unseaworthiness (which I’ll talk more about next week).

4.  The Court then concludes by offering a detailed explanation about why stare decisis does not counsel in favor of sticking with precedent in this instance, largely because the current rules promotes uncertainty and leads to all sorts of inconsistent outcomes in similarly situated cases.

Take a look sometime–you’ll be glad you did.

  February 3, 2012 at 8:51 am   Posted in: Admiralty, Jurisprudence   Print This Post   3 Comments

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

posted by Derek Bambauer

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »

  January 24, 2012 at 12:05 pm   Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology   Print This Post   9 Comments

Goodwin Liu’s First Three Months on the California Supreme Court

posted by Kyle Graham

Goodwin Liu now has been an associate justice of the California Supreme Court for just over three months. And while he has not yet written a majority, dissenting, or concurring opinion, the (very) early returns suggest that the comparisons between Justice Liu and former Chief Justice Rose Bird that circulated at the time of his nomination to the court may have been a tad overstated.

Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored by Justice Carol Corrigan, a Schwarzenegger appointee.

Meanwhile, just last month the court unanimously affirmed judgments of death in two separate cases. Though neither matter raised particularly complex issues, Justice Liu’s votes in these cases belie suggestions that, if placed in a position to review capital cases, he would “overrule death penalty convictions given any excuse, no matter how far-fetched.”

  December 6, 2011 at 3:56 am   Posted in: Capital Punishment, Courts, Jurisprudence   Print This Post   3 Comments

The Usefulness of Legal Scholarship

posted by Daniel Solove

A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

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  November 26, 2011 at 4:19 pm   Posted in: Jurisprudence, Law and Humanities, Law Practice, Law School (Scholarship), Legal Theory   Print This Post   6 Comments

Q&A with Lior Strahilevitz about Information and Exclusion

posted by Daniel Solove

Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011).  Like all of Lior’s work, the book is creative, thought-provoking, and compelling.  There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way.  That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I lived in the student housing cooperatives at Berkeley.  Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process.  The cooperatives, by contrast, were open to any student.  But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities.  That made me curious.  It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system.  But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone?  That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system.  I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.)  The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge.  Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services.  When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it.  Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria.  There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

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  September 28, 2011 at 11:17 pm   Posted in: Book Reviews, Bright Ideas, Jurisprudence, Law and Humanities, Law and Psychology, Legal Theory, Privacy, Sociology of Law   Print This Post   3 Comments

What is a treaty? Is that the right question?

posted by Matthew Lister

(Thanks to Danielle and the Co-Op crowed for letting me stick around a bit longer.)

I am interested in how we should think about treaties.  More specifically, I am interested in different ways we might think about treaties, and why different ways might be appropriate in different circumstances.  At one extreme we might think of treaties as establishing sacred duties, as being based on oaths with deep religious implications.  (Jeremy Waldon has a very interesting discussion of the history of this idea in his recent Charles E. Test lectures, “A Religious View of the Foundations of International Law”.)  I think that there’s a case to be made that supposed principle of international law (or of natural law, depending on one’s account), pacta sunt servanda, depends on this understanding, though I won’t try to make that case here.  (If so, this would be interesting in light of fact that Hans Kelsen at one point held, I believe, pacta sunt servanda to be the “basic norm” of international law, though he later abandoned this.) Read the rest of this post »

  September 8, 2011 at 6:02 am   Posted in: Contract Law & Beyond, History of Law, International & Comparative Law, Jurisprudence, Legal Theory, Trade, Uncategorized   Print This Post   4 Comments

Tsunami and “natural rights” in property

posted by Andrew Sutter

תַּחַת כָּל-הַשָּׁמַיִם לִי-הוּא
– Iyov 41:3 (Tanakh)

Whatsoever is under the whole heaven is Mine.
– Job 41:11 (Authorized Version)

It’s said that the Lisbon earthquake and tsunami of 1755 had a profound effect on the thought of Voltaire, Rousseau, Kant, and others. Having occurred so far from Western intellectual centers, the 2004 Southeast Asian tsunami and the 2011 Japan tsunami are unlikely to be so influential. The first fits easily into the discourse of “underdevelopment,” and evokes our pity. The second occurred in a country more “like us” in many ways, but was soon overshadowed by just one of its effects, a so-called nuclear “catastrophe” that fits easily into the discourse of energy politics and money, and that resonates with our bi-polar attitude toward technology.

While I can’t speak to the 2004 tsunami, I did spend time earlier this month investigating the impact of the Japanese tragedy first-hand. Obviously, the effects of seeing one erased town or neighborhood after another, in three dimensions and 360 degrees, and of smelling them, and of sneezing or choking on their dust, were more than intellectual. But an unavoidable by-product of the experience is that it’s hard not to think some of our cherished intellectual positions are vain, self-serving and simply wrong. And among them, our notions of property.
Read the rest of this post »

  May 23, 2011 at 4:29 am   Posted in: Current Events, International & Comparative Law, Jurisprudence, Property Law   Print This Post   9 Comments

John Bingham on Interpretation

posted by Gerard Magliocca

Over the next several months, I am probably going to put up a fair number of “here’s-something-interesting-that-John-Bingham said” posts.  For instance, in a debate over a statute in 1869, Bingham rejected the interpretation offered by a colleague of the provision under consideration with this observation:

“[I]t was once upon a time ruled in the Supreme Court, in an opinion delivered by the late Chief Justice, that the enactors of laws could not give interpretation to their own enactment by what was said in-debate in the legislative body; that the law was to be construed by its own words, and not by the explanation which gentlemen make as to their purpose in introducing or supporting a bill.”

I should add that Bingham said this (or something very similar) several times over his years in Congress, so I think it’s fair to say that this was a principled position rather than a debating point trotted out to obtain a result.

  April 6, 2011 at 9:45 am   Posted in: Jurisprudence   Print This Post   2 Comments

Law & Econ’s Influence on Law & Accounting

posted by Lawrence Cunningham

The hottest book of the century, on corporate law, is in production, thanks to editors Brett McDonnell and Claire Hill, both of Minnesota. As part of a series investigating the economics of particular legal subjects, overseen by Richard Posner and Francesco Perisi, this Research Handbook on the Economics of Corporate Law, promises a comprehensive canvass of the broadest definition of this field of law as it has been structured by economic theories over the past forty years.

My contribution addresses the influence of law and economics on the sub-field of law and accounting, which I suggest takes the form of “two steps forward one step back.”  You can read a draft of my chapter (comments welcome!), available free here, accompanied by the following abstract:

Theory can have profound effects on practice, some intended and desirable, others unintended and undesirable. That’s the story of the influence the field of law and economics has had on the domain of law and accounting. That influence comes primarily from agency theory and modern finance theory, specifically through the efficient capital market hypothesis and capital asset pricing model. Those theories have forged considerable change in federal securities regulation, accounting standard setting, state corporation law, and financial auditing. Affected areas include the nature of disclosure, the measure of financial concepts, the limits of shareholder protection, and the scope of auditor duty.

Analysis reveals how agency theory and finance theory often but not always point to the same policy implications; it reveals how finance theory’s assumptions and limitations are often but not always respected in policy development. As a result, while these theories sometimes produced policy changes that were both intended and desirable, some policy changes were both unintended and undesirable while others were intended but undesirable.  Examination stresses the power of ideas and how they are used and cautions creators and users of ideas to take care to appreciate the limits of theory when shaping practice. That’s vital since the effects of law and economics on law and accounting remain debated in many contexts.

Other contributions to the book similarly available in draft form are by Matt Bodie (St. Louis), David Walker (BU) and Charles Whitehead (Cornell).  The following scholars are also contributing chapters: Bobby Ahdieh (Emory), Steve Bainbridge (UCLA), Margaret Blair (Vandy), Rob Daines (Stanford), Steve Davidoff (Ohio State), Jill Fisch (Penn), Tamar Frankel (BU), Ron Gilson (Stanford/Columbia), Jeff Gordon (Columbia), Sean Griffith (Fordham), Don Langevoort (GT), Ian Lee (Toronto), Richard Painter (Minnesota), Frank Partnoy (SD), Gordon Smith (BYU), Randall Thomas (Vandy), and Bob Thompson (GT).

  March 4, 2011 at 9:46 am   Posted in: Accounting, Behavioral Law and Economics, Corporate Finance, Corporate Law, Jurisprudence, Legal Theory, Securities Regulation   Print This Post   No Comments

UCLA Law Review Vol. 58, Issue 3 (February 2011)

posted by UCLA Law Review

Volume 58, Issue 3 (February 2011)

Articles

Good Faith and Law Evasion	Samuel W. Buell	611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19	Katherine Florey	667
The Need for a Research Culture in the Forensic Sciences	Jennifer L. Mnookin et al.	725
Commentary on The Need for a Research Culture in the Forensic Sciences	Joseph P. Bono	781
Commentary on The Need for a Research Culture in the Forensic Sciences	Judge Nancy Gertner	789
Commentary on The Need for a Research Culture in the Forensic Sciences	Pierre Margot	795

Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation	Samuel M. Kidder	803
Defendant Class Actions and Patent Infringement Litigation	Matthew K. K. Sumida	843

  February 25, 2011 at 1:19 pm   Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court   Print This Post   No Comments

Gray on Extraordinary Justice

posted by Danielle Citron

My colleague David Gray has a terrific piece Extraordinary Justice, which is now out in volume 62 of the Alabama Law Review.  Luckily, Professor Gray will be coming back as a guest blogger next month, more on that soon.  Here is the article’s abstract:

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative.

The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort awards that violate basic commitments to individual fairness and those who appeal to collective responsibility, atonement, or reconciliation as special transitional justice theories. These debates have not reached a persuasive resolution because both camps fail to recognize and take full normative account of the extraordinary conditions in abusive regimes. What distinguishes pre-transitional abuses from ordinary crime is the role played by an abusive paradigm. An abusive paradigm is a combination of social norms, law, and institutional practice that utilizes a bi-polar logic to justify targeted violence. Abusive paradigms gain authority after the collapse of dynamic stability – the overlapping network of associations and oppositions that restricts violence and violent impulses in stable regimes. Once dominant, abusive paradigms rationalize and enforce a pathological status inequality that excludes those in an oppressed group from cross-secting identities, allowing abusers to regard them as appropriate targets for exclusion and abuse.

The primary task in transition is to seize the liminal moment between an abusive past and a future committed to human rights, democracy, and the rule of law in order to achieve some level of parity between victims and abusers, in part by creating or reconstituting the network of overlapping identities reflective of a dynamically stable society. Reparations and other transitional justice tools, liberated from the constraints of ordinary justice models, have a role to play in this extraordinary endeavor as sites for what Rosa Ehrenreich Brooks has called “effective norm change.” For example, symbolic reparations can provide official recognition of victims. Material reparations can provide former victims with meaningful access to spheres of public and private life once denied to them as a consequence of their status. Treating reparations as part of the extraordinary endeavor of social transformation also provides ready responses to common objections, including those prominent in debates about historical reparations.

  February 25, 2011 at 7:39 am   Posted in: International & Comparative Law, Jurisprudence, Uncategorized   Print This Post   2 Comments

The Common Law and the Monarchy

posted by Gerard Magliocca

Greetings from San Francisco and the AALS Conference!  I went to Alcatraz this morning.  Fortunately, I was allowed to leave.

I like to ask my Torts students what judges use as their authority for making common-law decisions.  The answer is a statute.  Every state has a law that either adopts the common law of England as of July 4, 1776 or the common law as developed when the state was a territory.  In this sense, all common-law is statutory interpretation.

You can make a related point about the Crown.  The source of Elizabeth II’s right to reign is the Act of Settlement (enacted in 1701), which was designed to resolve the succession after the childless Queen Anne died.  Among other things, it bars any Catholic from being the monarch.  Thus, the Queen is really nothing more than the head of an administrative agency with a special religious test attached and without the Chevron deference.

  January 4, 2011 at 9:02 pm   Posted in: Jurisprudence   Print This Post   No Comments

Stalking About Your Generation

posted by Jonathan Lipson

Yesterday, I had the all-too-brief pleasure of sitting in on the first couple of talks at the Wisconsin Law Review’s Symposium, Intergenerational Equity and Intellectual Property, here in Madison.

Organized by my colleague, Shubha Ghosh (and starring, among others, CoOp-erator Deven Desai), the goal is important:  How do we understand the intergenerational consequences of a legal regime—intellectual property—that is strongly determined by the present, but which has significant, but under-theorized, consequences for the future?  Fights about extending the term of the Mickey Mouse copyright—or any set of long-haul rights—don’t just affect my kids, but potentially their kids, their kids’ kids, and so on.  These are, in short, really fights about intergenerational equity.

I was only able to hear Michigan’s Peggy Radin (Property Longa, Vita Brevis) and Penn’s Matt Adler (Intergenerational Equity: Puzzles for Welfarists), but as expected, both provided awesome overviews of these sorts of problems.  As Radin pointed out, intellectual property (knowledge and information law generally) always involves two types of generational problems: One is temporal (my parents, me, my kids, their kids, etc.); the other is technological (my students barely know from videotape; I will never beat my daughter at any computer game).

Adler explained that it is easy (and perhaps imprudent) to dismiss the utility of welfare economics as a tool to make these sorts of decisions.  Certainly, we might say, Benthamite sums of utils could predict little for those not in existence (the future):  what would their utility function be, really?

Yet, he observed, robust and subtle analytic models and conceptual frameworks are being developed by the Sens and Arrows of the world, and they may (if the future is bright) help develop more equitable and effective decision tools for matters with a long temporal reach.

Those who follow state politics may find this all a bit ironic. Wisconsin’s recent election was a decisive victory for Republicans, who captured both houses of the legislature and the Governor’s office on a message which may strain the state’s motto, “Forward.”

If Republicans keep their word, tax breaks for the rich and elderly will replace education and healthcare spending for the young and unborn; fossil fuel (old tech) subsidies will replace biofuel (new tech) development; and the University may have to fight to continue its path-breaking stem-cell research, certainly a way to kill both jobs in the present and medical miracles in the future. This may be good for baby boomers, but isn’t likely so hot for their grandkids.

Wisconsin’s liberals are, of course, despondent over their loss of power and position.  Yet, forecasting and discounting long-term causation are among the things that make questions of intergenerational equity  so interesting and difficult.  I doubt Newt Gingrich thought in 1994 that the Contract with America would virtually assure Bill Clinton a second term, but today the former seems to have led to the latter.   Likewise, it is certain that neither Jeremy Bentham nor Pete Townshend could have predicted the duration of their memetic contributions to today’s discussions about tomorrow.  They probably just thought it was all rock and roll.

  November 13, 2010 at 6:33 pm  Tags: Intellectual Property, intergenerational equity, Republicans, Wisconsin  Posted in: Conferences, Economic Analysis of Law, Intellectual Property, Jurisprudence, Law Rev (Wisconsin)   Print This Post   No Comments

Argument in Class Waiver Case Favors Consumers, States

posted by Lawrence Cunningham

Power between enterprises and individuals hangs in the balance as the U.S. Supreme Court considers whether organizations can prevent people from banding together to challenge crooked practices that involve stealing small sums from large numbers of people. The judges and lawyers engaged in a riveting oral argument on the hot topic in a case pitting the mighty AT&T against a couple of California citizens. The case also pits the federal government against the states.

At issue are the clauses that companies now routinely include in standard form consumer contracts requiring disputes to be resolved in one-on-one arbitration. People give up the right to mount class claims in arbitration or court. Some unscrupulous companies use this as a way to cheat large numbers of people out of small amounts of money.

Companies following this route benefit from a strict federal law (the Federal Arbitration Act, or FAA) saying states cannot treat arbitration clauses differently than they treat other contracts. Courts nationally have struggled to evaluate whether these clauses pass standard contract tests of unconscionability. Yesterday’s case will determine whether those states are taking the right approach.

The principal theme of questioning probed how the Justices could tell if a state’s judges comply with the FAA’s mandate to treat arbitration clauses like other contracts. The company’s lawyer (Andrew Pincus) said it was simple: look at the general unconscionability doctrine applied to all contracts and compare it to the unconscionability doctrine applied to arbitration clauses.

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  November 10, 2010 at 11:08 am   Posted in: Consumer Protection Law, Contract Law & Beyond, Jurisprudence, Supreme Court, Uncategorized   Print This Post   2 Comments

Book Review: Raz’s Between Authority and Interpretation

posted by Stefan Bird-Pollan

Joseph Raz, Between Authority and Interpretation (Oxford University Press, 2009), 424 pp.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and Morals” (both 1958), and then with a series of essays by Ronald Dworkin published successively as Taking Rights Seriously (1977) and Law’s Empire (1986).

Hart’s positivism argues roughly that law and morality are at least separate in the sense that law cannot be reduced to morality. This means that we can study law scientifically without getting involved in disputes about substantive questions concerning the good. But since it is clear that in order to be obeyed, laws ought not merely to rely on force, laws require some source of authority which can only come through deliberation. Such deliberation, however, is need not be moral but can be thought of as merely normative. Hart holds that the authority of the law is provided by rules of recognition: these are secondary or meta-rules which specify the authority of law derived from particular social practices. A rule of recognition, for instance, is that, in the United States, laws are passed by congress according to a certain procedure. This specifies the way the law receives its authority but not what the law is (which is a matter of primary rules).

Much of the debate surrounding Hart’s theory has been about whether the rule of recognition could indeed do without moral support, that is, whether the separation of law and morality could be maintained. Dworkin, as Fuller had argued before him, contended that the rule of recognition could not be normative without also being moral because, in the case of legal interpretation for instance, the law will need to be extended to deal with difficult cases (a point Hart vacillated on). Extending the law can only be done through recourse to extra-legal principles of controversial political morality or policy, not already specified by law. So law is not free standing after all.

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  November 3, 2010 at 11:43 pm   Posted in: Book Reviews, Jurisprudence, Law and Humanities, Legal Theory   Print This Post   2 Comments

Law, Education, and Hard-Driving Reform

posted by Craig Livermore

Shortly after Washington D.C. Mayor Adrian Fenty was defeated in the mayoral primary this September, Michelle Rhee resigned from her position as the Washington D.C. Schools Chancellor.  In her three years in the position, Rhee had gained a national reputation as a zealous “no-excuses” reformer seeking to hold teachers and educational administrators accountable in an attempt to raise urban student assessment scores.   Along with Geoffry Canada of the Harlem Children’s Zone, Rhee is spotlighted in the educational documentary Waiting for Superman as the type of reformer needed to turn around the multi-decade dysfunction and despair of urban education.  However, Mayor Fenty’s political loss and Michelle Rhee’s resignation can rightly been seen as the most visible incident of a growing national educational trend to push back on hard-driving top-down reform with genesis outside of the communities which are in need of reform.

When Newark Mayor Cory Booker, New Jersey Governor Chris Christie and Facebook Founder Mark Zuckerberg (Geoffry Canada was there as well) recently appeared on the Oprah Winfrey Show to announce the $100 million donation to the Newark Schools by Zuckerberg, Oprah hinted to Mayor Booker that Rhee is a dynamic reformer who could fill the soon to be vacant position of the Newark Public Schools Superintendent.  Mayor Booker affirmed Rhee’s dynamism, but quickly stated that the real genesis of reform in urban education must emanate organically from the community.  It is the parents, students, and community members which must be the supermen and superwomen.  And thus, on November 1, 2010, an initiative called PEN Newark (Partnership for Education in Newark) has been launched as the first stage in the utilization of the Zuckerberg donation for education reform.   PEN Newark has been founded as a collaborative effort between Mayor Booker and Newark Public Schools Advisory Board of Education Chair Shavar Jeffries.  Jeffries is an organic leader from Newark who ran his campaign in 2010 on a platform of community engagement.  The initiative is an extensive feedback and outreach initiative.  Its mission is to connect, interview, survey, and speak with all stakeholders within the Newark community concerning the types of reform the Zuckerberg donation should generate.  Mayor Booker has learned this political lesson well.  And, indeed, this is the model of participative and collaborative reform that is gaining momentum nationally as a reaction to hard-driving no-excuses top-down reform.

But if this is all politics and education, what does it have to do with the Law?  Everything.  Public education in the United States is completely constructed and defined by an interactive array of legal regulation–both policy and jurisprudence.   From comprehensive federal accountability legislation such as the No Child Left Behind Act (the current iteration of the Elementary and Secondary Education Act first passed by Congress in 1965), to the interpretation of educational rights by state and federal courts, to the strong support of collective bargaining agreements by most state law makers, education is minutely regulated.  For example, the New Jersey Supreme Court’s 20 Abbott v. Burke opinions have interpreted the New Jersey Constitution’s right to a “thorough and efficient education” (Article VIII, Sec. 4) to not only delineate school funding formulas which provide for vertical equity (more money for students facing greater need), but have also mandated preschool education, reform from specific educational models, facilities construction and even curricular content standards.   Over the past forty years, as urban schools have increasingly struggled with low performance, inefficiency and mismanagement, and, at times, corruption, greater detail and layers of policy and jurisprudence-based regulation have been implemented.  When such micro-regulation has been added to schools within communities under great stress and poverty, dysfunction has been guaranteed, and stasis has resulted.

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  November 1, 2010 at 1:38 pm  Tags: Education, law and education, Reform  Posted in: Education, Jurisprudence, Politics, Uncategorized   Print This Post   3 Comments

Cardozo on Judging Now In Modern Print

posted by Lawrence Cunningham

When some people still find it worth debating whether judges make law or simply follow it, we’re lucky to have a modern printing of a most venerable treatment of the subject: Benjamin Cardozo’s The Nature of the Judicial Process is now published in a contemporary format that’s easy on the eyes and the wallet.

As Frank Pasquale noted last month, Tulane Law professor Alan Childress is successfully launching a valuable publishing program featuring modern dissemination methods for classic legal texts. Called Quid Pro books, the imprint’s most recent installation is Cardozo’s timeless work.

As most people know, judges create law, not just follow it. Cardozo’s classic provides among the best expositions of how and why this is so. General readers and legal devotees alike benefit. That’s important today as there continues to be talk, including by our Chief Justice, though in the political forum of confirmation hearings, about how judges are merely like umpires calling balls and strikes.

Certainly, every law student should read Cardozo’s practical and frank masterpiece. At Cardozo Law School for decades, the School gave a copy of the paperback version of this book to members of its incoming class. Thanks to Professor Childress, now schools can give it to students in many different contemporary formats.
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  October 26, 2010 at 12:55 pm   Posted in: Book Reviews, Jurisprudence   Print This Post   One Comment

Future of the Internet Symposium: (Im)Perfect Enforcement

posted by Ryan Calo

Prohibition wasn’t working. President Hoover assembled the Wickersham Commission to investigate why. The Commission concluded that despite an historic enforcement effort—including the police abuses that made the Wickersham Commission famous—the government could not stop everyone from drinking. Many people, especially in certain city neighborhoods, simply would not comply. The Commission did not recommend repeal at this time, but by 1931 it was just around the corner.

Five years later an American doctor working in a chemical plant made a startling discovery. Several workers began complaining that alcohol was making them sick, causing most to stop drinking it entirely—“involuntary abstainers,” as the doctor, E.E. Williams, later put it. It turns out they were in contact with a chemical called disulfiram used in the production of rubber. Disulfiram is well-tolerated and water-soluble. Today, it is marketed as the popular anti-alcoholism drug Antabuse.

Were disulfiram discovered just a few years earlier, would federal law enforcement have dumped it into key parts of the Chicago or Los Angeles water supply to stamp out drinking for good? Probably not. It simply would not have occurred to them. No one was regulating by architecture then. To dramatize this point: when New York City decided twenty years later to end a string of garbage can thefts by bolting the cans to the sidewalk, the decision made the front page of the New York Times. The headline read: “City Bolts Trash Baskets To Walks To End Long Wave Of Thefts.”

In an important but less discussed chapter in The Future of the Internet, Jonathan Zittrain explores our growing taste and capacity for “perfect enforcement.” Read the rest of this post »

  September 7, 2010 at 2:58 pm   Posted in: Architecture, Articles and Books, Book Reviews, Cyber Civil Rights, Cyberlaw, DRM, Jurisprudence, Legal Theory, Symposium (Future of Internet), Technology   Print This Post   5 Comments

Unfaithful Interpretation and The Gold Clause Cases

posted by Gerard Magliocca

The other day I said that the Court must sometimes break with the view that constitutional interpretation is about being faithful.  What’s my definition of unfaithful interpretation?  To avoid arguing about the merits of cases that people might think were wrong or right, here’s my idea. Unfaithful interpretation is when a court declares that somebody has a right but, for prudential reasons, will get no remedy.  It’s not that a remedy cannot be given (because of a statute or a doctrine) or that it’s only a partial or delayed remedy; the Court decides that it’s just a bad idea to provide any remedy.  I think this is unfaithful if you assume that remedies and rights should be linked absent some contrary authority. Moreover, denying a remedy for prudential reasons undermines confidence that the legal analysis was done in good-faith.

What are some examples?  Marbury, for starters.  Sure, the Court said that it could not give him a remedy because that would be unconstitutional, but nobody thinks that Marshall’s reading of the statute there was anything other than a dodge.  Worcester v. Georgia is another example, as the Court did not issue the mandate and thus left Worcester to sit in a Georgia jail until further notice.  Ex Parte McCardle is another, as the Court could have issued an opinion on the merits in that case before the jurisdiction-stripping statute took effect but chose not to.  Giles v. Harris, which I talk about in my new book on Populism, involved the Court’s refusal to give a remedy to African-Americans denied their suffrage rights in the South.  The Gold Clause Cases, which will be the focus of my next Article and which I’ve posted about, is the least-well known instance of unfaithfulness.

What connects these cases?  There was a deep fear among the Justices that providing a remedy would:  (1) expose the Court to institutional damage; (2) lead to an adverse political outcome; or (3) both.  Now, the question is, should the Court be unfaithful in these situations?  Isn’t that getting dangerously close to saying that there is a higher law above the Constitution? (Judicial self-preservation?  The Constitution is not a suicide pact?) Or does it suggest, as I suggested on Monday, that interpretive theory is wrong when it presupposes things like “integrity” or “fidelity?”

I’m not sure, which is why I think this might be a good paper.

UPDATE:  In response to some of the comments, let me add this.  Yes, the argument here is premised on the idea that rights and remedies should be linked.  (After all, there must be some way of determining whether an action is unfaithful that can reach beyond a particular interpretative theory.  I’m not sure that there is a better alternative.)

So the other thought is “Well, suppose my theory says that it should be followed unless doing so would lead to a bad result.  In that case, I’ll refuse to provide a remedy.  And if I do refuse, I’m being faithful to my theory, not unfaithful.”

That is true.  Of course, it’s only true if that is your theory.  Is refusing to provide a remedy evidence of support for that theory or evidence to the contrary?  After all, the cases themselves don’t describe what they’re doing as consistent with some broader principle.  Instead, they usually try to hide the inconsistency.  Evidence of a guilty conscience, methinks. But maybe not — I’ll have to think about that.

UPDATE #2 — Perhaps this is really about interpretive “necessity” rather than “unfaithfulness.”

  September 2, 2010 at 8:11 pm   Posted in: Jurisprudence   Print This Post   10 Comments

Unfaithful Interpretation

posted by Gerard Magliocca

Normally I run away screaming when somebody starts discussing interpretive theory.  That’s partly because I just don’t find the subject that interesting, but another reason is that I’ve always seen an interpretative approach as nothing more than a presumption that is always riddled with so many exceptions that it’s hard to figure out what the presumption is.

There is a thought, though, that occurs to me, with apologies if it’s already out there.  The premise behind most arguments about interpretation is that the goal is to be faithful to the source.  Now, of course, reasonable people disagree about how to do that.  Maybe it’s textualism, maybe it’s originalism, maybe it’s living constitutionalism, etc.

There are instances, however, in which that is not an accurate description of interpretation.  A better characterization is that interpretation is about justifying a result that everybody wants even though it not in the source.  In other words, some exercises of interpretation are not about being faithful at all.  They are about being unfaithful.  I wonder, though I haven’t thought this through, how that changes one’s view of the best interpretive theory.

By the way, if you’re looking for an example of “unfaithfulness,” consider Bolling v. Sharpe, which is really hard to square with the legal materials available in 1954, even though everybody thinks that result was right and necessary.

  August 30, 2010 at 10:49 am   Posted in: Jurisprudence   Print This Post   12 Comments

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