Category: Jurisprudence


Illegal Aliens and Natural Rights

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.


Clinton or Gillibrand for SCOTUS

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).


Legislative History and Statutory Interpretation

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.



Calling Liberal Pro-Business Judges

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.


Natural Law Psychology, Human Nature, and Plato’s “Meno”

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.



The “Missing Jurisprudence” – Part 2

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:

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This is Water

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 More


Take that Constitution and…

…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?


The “Missing Jurisprudence”

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.


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:

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Justice, Law, and Fellowship: From Coordination to Collaboration

“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.