Category: Jurisprudence


Using “Foreign” Law in Constitutional Interpretation

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

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

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


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

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

Not so it would seem. Read More


Traditional v. Economic Analysis

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

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

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

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

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Canonical Statutes

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

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

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Science and Law

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

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

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Poll on Famous Torts Cases and Judges


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

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

My analysis inter-acts these opinions, in their practical, theoretical and pedagogical contexts, to hypothesize explanations for this differential status.  A simplified version of the thesis: Cardozo’s traditional doctrinalism, supplemented using old-fashioned rhetoric, wins out over Posner’s contemporary economic supplementation of legal reasoning.  posner2

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

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

heart1aThere has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

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

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

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

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

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

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A Right to Be Punished?

From the Department of Paradoxes in Sporting Jurisprudence:

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

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

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

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

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Smart. Smart! Smart?

Oliver Wendell Holmes

Oliver Wendell Holmes

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

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

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

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

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

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


Posner’s Anxiety, Cardozo’s Influence

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

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

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

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

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