Site Meter

Category: Jurisprudence

4

“Normative Jurisprudence” and What Law Professors Should Do

(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.

1

Bo Xilai and the Rule of Law

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.

0

On Information Justice

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.

Read More

1

Is IP for People or Corporations?

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

Read More

0

Intellectual Property Theory: An Homage and Reply

I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.

What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.

The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.

Read More

1

Adam Thierer on Classical Liberalism on the Net

As the political season is in full swing and folks claim to understand SOPA, PIPA, etc., I thought I should point people to Adam Theirer’s post Mueller’s Networks and States = Classical Liberalism for the Information Age. I knew Adam a little before my stint at Google. I came to know him more while there. I do not agree with everything Adam says. Rather, he reminds me of folks I knew in law school. I disagreed with many people there, but respected the way they argued. Their points made me rethink mine and perhaps improve them. The distinction between cyber-libertarianism and Internet exceptionalism that Berin Szoka and Adam try to make is important. I am not sure it succeeds but as Adam says

They are not identical. Rather, as Berin and I argued, they are close cousins. Properly defined, cyber-libertarianism is essentially the application of traditional libertarian thinking — which is more properly defined as classically “liberal” — to Internet policy issues. Berin and I define “cyber-libertarianism” as “the belief that individuals — acting in whatever capacity they choose (as citizens, consumers, companies, or collectives) — should be at liberty to pursue their own tastes and interests online.” Internet exceptionalism, by contrast, is the belief that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene. But that does not necessarily tell us what sort of philosophy or core tenants ultimately animate exceptionalism going forward. (emphasis added by me)

This last point is the reason I call out the piece. So far I have not seen anything that addresses the point in a satisfactory way. Adam and Berin face this gap and try to fill it. Agree. Disagree. That is your choice. But read the whole thing and see where you end up. One final note, I think classical liberalism as Adam defines it may be more empty than it seems. For now I cannot explain why. For that I apologize to those of that camp, but I am working on that. Oh which reminds me, Julie Cohen’s book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, takes on this issue.

0

Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

4

Federal Reserve Precedent

Here comes the payoff from my comparison of judicial and central bank independence, as described in my last few posts.

Respect for precedent is a useful way of limiting the power of an independent institution like the Federal Reserve.  Furthermore, courts and central banks share a desire for stable policy to anchor expectations (about the rule of law and prices) while retaining the flexibility to adapt to new conditions. This leads to an obvious question.  If courts find common-law stare decisis helpful, why not central banks?

In this respect, a recent change at the Federal Reserve may be far-reaching.  Until the 2000s, the Federal Open Market Committee (FOMC) did not offer any explanation for its monetary decisions.  Under Chairman Bernanke, however, the FOMC began issuing a written statement after each meeting justifying its action (or inaction).  Every so often there is a “dissent” from the opinion, though the dissent is usually fairly brief.

At what point will the FOMC or dissenting bankers start citing these prior statements as some kind of authority?  Put another way, how does a system of precedent develop organically?  Initially, the relevant work product is descriptive.  The English Year Books, which first reported the pleadings under the writ system in medieval days, began as a description of how cases were decided.  Lawyers and judges later started looking at these reports for guidance (how long that process took–I don’t know).  The same could eventually happen for central banks.

I would submit that this would be a positive development, as it would take monetary policy more towards a “rule of law” rather than a “rule of men,” without going to the extreme of the gold standard, which was too inflexible back in the day.  But that gets close to falling outside of my limited area of competence.

One more post coming about how the Fed became independent, and then I’m done with this topic.

 

 

20

The ACA, Citizens United, and Unfair Public Perception of the Supreme Court

I’m thrilled to be guest blogging for Concurring Opinions for July. By mid-month, I’ll post a draft of a recently completed article on quantifying probable cause, a topic inspired by my April guest blogging stint. In the meantime, I’d like to add my reaction to Thursday’s epic Supreme Court decision upholding the Affordable Care Act, with a focus on judicial legitimacy.

I am quite pleased with the commentary on the Supreme Court’s Affordable Care Act decision, from commentators on

the left and on the right. I am greatly disturbed, however, by the intractable cynicism about the Supreme Court that has gripped the public. The belief that Justices decide cases largely due to their own politics, I submit, actually enables Justices to do so, leading to a vicious cycle.

The attached poster, which has been circulated widely, urges voters to re-elect President Obama so that the Supreme Court can overturn Citizens United, which invalidated laws restricting the ability of corporations, nonprofits, and unions to engage in certain forms of political advocacy during elections. Whatever your opinion of Citizens United, reducing that case’s holding to a three-word declaration that “corporations are people” is simplistic and misleading. Citizens United refused to allow corporate expenditures on speech to be hampered based on the identity (or corporate status) of the speaker. Even Justice Stevens’ dissent acknowledged that corporations receive First Amendment protections in certain situations. The poster’s results-oriented, un-nuanced view of the case is irresponsible.

I could dismiss the poster as political pandering, but “corporations are people” seems to be what a significant portion of the public thinks that Citizens United decided. They also believe it was decided this way based on five Justices’ favoritism of corporations and antipathy towards campaign finance reform. I believe that the media is partially to blame for the public’s conflation of the results of a case with the political biases of the Justices. Articles discussing politically-charged Supreme Court cases often attribute the outcome of a case to the Justices as if the reasoning/procedural posture is secondary, and as if no Justice ever voted to invalidate a statute that he favored or uphold a statute that she abhorred. Just look at United States v. Alvarez, issued on the same day as the Affordable Care Act was deemed a tax. Surely six Justices are not in favor of individuals falsely claiming to be decorated soldiers, yet they invalidated a statute criminalizing such lies.

Read More

0

Stanford Law Review Online: Discrimination, Preemption, and Arizona’s Immigration Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Lucas Guttentag entitled Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View. The author discusses the upcoming Supreme Court ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070. He argues that discrimination must be a crucial consideration in the Court’s review of the federal preemption challenge brought by the United States:

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.

But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws. In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws.

He concludes:

While the precise force and scope of the Civil Rights Laws with regard to non-legal resident aliens remain undetermined, and Arizona claims to be penalizing only undocumented immigrants, defining the federal interest solely through the lens of immigration regulation and enforcement is still too narrow. Federal law is not only about federal immigration enforcement—it is equally about preventing discrimination. Measuring state laws only against the intricacies of federal immigration statutes and policies misses this essential point.

Some Justices may recognize the broader non-discrimination interests presented in the federal government’s preemption claim. And even if the pending challenge does not enjoin any or all of the S.B. 1070 provisions, civil rights challenges will more directly raise the rights of immigrants, their families and communities. But that eventuality should not obscure the importance of understanding that the federal values transgressed by S.B. 1070 and similar laws encompass both immigration and anti-discrimination imperatives.

Read the full article, Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View by Lucas Guttentag, at the Stanford Law Review Online.