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Category: Legal Theory

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The Relationship Between Theory and Practice

The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed.  Recently, I responded to one such critique.  There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct influence.  Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources.  Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes.  Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1.  The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone.  Last I checked, there were quite a lot of treatises written by quite a lot of law professors.  But there is today a lot more theoretical scholarship.  Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify.  What’s the value of Kafka’s The Trial or works by Shakespeare?  What’s the value of reading history?  What’s the value of learning things that don’t have direct application to one’s career?  I believe there’s a lot of value.  Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently.  This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature.  Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits.  Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration?  Probably not.  Would Justice Holmes have been as great without his love of the humanities?  I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent.  Why do justices bother to write dissents?  After all, it often takes decades if not 40-50 years for the Supreme Court to change the law.  They write dissents in the hope that one day the Court will see things differently.  They write them to make a record.  There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change.  Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones.  Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science.   Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

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The Usefulness of Legal Scholarship

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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An Irrational Undertaking: Why Aren’t We More Rational?

By unanimous reader demand – all one out of one readers voting, as of last week – this post will explore the small topic of the biological basis of “irrationality,” and its implications for law.  Specifically, Ben Daniels of Collective Conscious asked the fascinating question: “What neuro-mechanisms enforce irrational behavior in a rational animal?”

Ben’s question suggests that ostensibly rational human beings often act in irrational ways.  To prove his point, I’m actually going to address his enormous question within a blog post.  I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality.  The first view is that greater rationality might be possible – but might not confer greater benefits.  I call this the “anti-Vulcan hypothesis”:  While our affective capacities might suppress some of our computational power, they are precisely what make us both less than perfectly rational and gloriously human – Captain Kirk, rather than Mr. Spock.  A second, related perspective offered by the field of cultural cognition suggests that developmentally-acquired, neurally-ingrained cultural schemas cause people to evaluate new information not abstractly on its merits but in ways that conform to the norms of their social group.  In what I call the “sheep hypothesis,” cultural cognition theory suggests that our rational faculties often serve merely to rationalize facts in ways that fit our group-typical biases.  Yet, whether we are Kirk or Flossie, the implication for law may be the same:  Understanding how affect and rationality interact can allow legal decision-makers to modify legal institutions to favor the relevant ability, modify legal regimes to account for predictable limitations on rationality, and communicate in ways that privilege social affiliations and affective cues as much as factual information.

First, a slight cavil with the question:  The question suggests that people are “rational animal[s]” but that certain neurological mechanisms suppress rationality – as if our powerful rational engines were somehow constrained by neural cruise-control.  Latent in that question are a factual assumption about how the brain works (more on that later) and a normative inclination to see irrationality as a problem to which rationality is the solution.  Yet, much recent work on the central role of affect in decision-making suggests that, often, the converse may be true.  (Among many others, see Jonathan Haidt and Josh Greene; these links will open PDF articles in a new window.)  Rationality divorced from affect arguably may not even be possible for humans, much less desirable.  Indeed, the whole idea of “pure reason” as either a fact or a goal is taking a beating at the hands of researchers in behavioral economics, cognitive neuroscience, and experimental philosophy – and perhaps other fields as well.

Also, since “rational” can mean a lot of things, I’m going to define it as the ability to calculate which behavior under particular circumstances will yield the greatest short-term utility to the actor.  By this measure, people do irrational things all the time: we discount the future unduly, preferring a dollar today to ten dollars next month; we comically misjudge risk, shying away from the safest form of transportation (flying) in favor of the most dangerous (driving); we punish excessively; and the list goes on.

Despite these persistent and universal defects in rationality, experimental data indicates that our brains have the capacity to be more rational than our behaviors would suggest.  Apparently, certain strong affective responses interfere with activity in particular regions of the prefrontal cortex (pfc); these areas of the pfc are associated with rationality tasks like sequencing, comparing, and computing.  Experiments in which researchers use powerful magnets to temporarily “knock out” activity in limbic (affective) brain regions, the otherwise typical subjects displayed savant-like abilities in spatial, visual, and computational skills.  This experimental result mimics what anecdotally has been reported in people who display savant abilities following brain injury or disease, and in people with autism spectrum disorders, who may have severe social and affective impairments yet also be savants.

So: Some evidence suggests the human brain may have massively more computing power than we can to put to use because of general (and sometimes acute) affective interference.  It may be that social and emotional processing suck up all the bandwidth; or, prosocial faculties may suppress activity in computational regions.  Further, the rational cognition we can access can be totally swamped out by sudden and strong affect.  With a nod to Martha Nussbaum, we might call this the “fragility of rationality.”

This fragility may be more boon than bane:  Rationality may be fragile because, in many situations, leading with affect might confer a survival advantage.  Simple heuristics and “gut” feelings, which are “fast and cheap,” let us respond quickly to complex and potentially dangerous situations.  Another evolutionary argument is that all-important social relationships can be disrupted by rational utility-maximizing behaviors – whether you call them free-riders or defectors.  To prevent humans from mucking up the enormous survival-enhancing benefits of community, selection would favor prosocial neuroendocrine mechanisms that suppress or an individual’s desire to maximize short-term utility.  What’s appealing about this argument is that – if true – it means that that which enables us to be human is precisely that which makes us not purely rational.  This “anti-Vulcan” hypothesis is very much the thrust of the work by Antonio Damasio (and here), Dan Ariely, and Paul Zak, among many other notable scholars.

An arguably darker view of the relationship between prosociality and rationality comes from cultural cognition theory.  While evolutionary psychology and behavioral economics suggest that people have cognitive quirks as to certain kinds of mental tasks, cultural cognition suggests that people’s major beliefs about the state of the world – the issues that self-governance and democracy depend upon – are largely impervious to rationality.  In place of rationality, people quite unconsciously “conform their beliefs about disputed matters of fact … to values that define their cultural identities.”

On this view, people aren’t just bad at understanding risk and temporal discounting, among other things, because our prosocial adaptations suppress it.  Rather, from global warming to gun control, people unconsciously align their assessments of issues to conform to the beliefs and values of their social group.  Rationality operates, if at all, post hoc:  It allows people to construct rationalizations for relatively fact-independent but socially conforming conclusions.  (Note that different cultural groups assign different values to rational forms of thought and inquiry.  In a group that highly prizes those activities, pursuing rationally-informed questioning might itself be culturally conforming.  Children of academics and knowledge-workers: I’m looking at you.)

This reflexive conformity is not a deliberate choice; it’s quite automatic, feels wholly natural, and is resilient against narrowly rational challenges based in facts and data.  And that this cognitive mode inheres in us makes a certain kind of sense:  Most people face far greater immediate danger from defying their social group than from global warming or gun control policy.  The person who strongly or regularly conflicts with their group becomes a sort of socially stateless person, the exiled persona non grata.

To descend from Olympus to the village:  What could this mean for law?  Whether we take the heuristics and biases approach emerging from behavioral economics and evolutionary psychology or the cultural cognition approach emerging from that field, the social and emotional nature of situated cognition cannot be ignored.  I’ll briefly highlight two strategies for “rationalizing” aspects of the legal system to account for our affectively-influenced rationality – one addressing the design of legal institutions and the other addressing how legal and political decisions are communicated to the public.

Oliver Goodenough suggests that research on rational-affective mutual interference should inform how legal institutions are  designed.  Legal institutions may be anywhere on a continuum from physical to metaphorical, from court buildings to court systems, to the structure and concept of the jury, to professional norms and conventions.  The structures of legal institutions influence how people within them engage in decision-making; certain institutional features may prompt people bring to bear their more emotive (empathic), social-cognitive (“sheep”), or purely rational (“Vulcan”) capacities.

Goodenough does not claim that more rationality is always better; in some legal contexts, we might collectively value affect – empathy, mercy.  In another, we might value cultural cognition – as when, for example, a jury in a criminal case must determine whether a defendant’s response to alleged provocation falls within the norms of the community.  And in still other contexts, we might value narrow rationality above all.  Understanding the triggers for our various cognitive modes could help address long-standing legal dilemmas.  Jon Hanson’s work on the highly situated and situational nature of decision-making suggests that the physical and social contexts in which deliberation takes place may be crucial to the answers at which we arrive.

Cultural cognition may offer strategies for communicating with the public about important issues.  The core insight of cultural cognition is that people react to new information not primarily by assessing it in the abstract, on its merits, but by intuiting their community’s likely reaction and conforming to it.  If the primary question a person asks herself is, “What would my community think of this thing?” instead of “What is this thing?”, then very different communication strategies follow:  Facts and information about the thing itself only become meaningful when embedded in information about the thing’s relevance to peoples’ communities.  The cultural cognition project has developed specific recommendations for communication around lawmaking involving gun rights, the death penalty, climate change, and other ostensibly fact-bound but intensely polarizing topics.

To wrap this up by going back to the question: Ben, short of putting every person into a TMS machine that makes us faux-savants by knocking out affective and social functions, we are not going to unleash our latent (narrowly) rational powers.  But it’s worth recalling that the historical, and now unpalatable term, for natural savants used to be “idiot-savant”: This phrase itself suggests that, without robust affective and social intelligence – which may make us “irrational” – we’re not very smart at all.

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Recommended Reading: Gregory Keating’s Fairness Theory, New Papers on Rylands and Nuisance

Professor Gregory Keating has two new pieces up on SSRN, both illuminating and important.  A quick overly-brief primer: Keating’s fairness theory provides the “moral logic” for treating strict enterprise liability as the modern default rule for tort law.  It requires an enterprise to compensate individuals injured by its risky, yet profitable activities if the victim does not benefit from those activities to the same extent that the enterprise does.  In that sense, strict liability exacts a just price for an enterprise’s freedom to engage in profitable activities where the victim did not similarly enjoy such a liberty but nonetheless suffered injury.  In the abstract included below for Recovering Rylands: An Essay for Bob Rabin (forthcoming DePaul Law Review), Keating celebrates and builds upon Robert Rabin’s article “The Historical Development of the Fault Principle,” providing a moral and historical account of Rylands v. Fletcher’s strict liability alternative to fault liability while recognizing its practical limitations.  After the jump, I will include the abstract for Keating’s Nuisance as a Strict Liability WrongHere is the abstract for Recovering Rylands:

This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it reminds us of the even more general truth that what the law does not cover is at least as important as what it does cover. The Historical Development of the Fault Principle is constructed around a simple, but powerful, distinction between fault as a breach of duty and fault as a cause of action. Negligence as a cause of action is an institution, a system of related rules, concepts, principles and policies. This simple but penetrating observation transforms the question of just what is at stake in the conventional thesis that the late nineteenth century was the heyday of “universal fault liability.”

Whether or not fault liability was “universal” at the end of the nineteenth century turns, Rabin teaches, not on whether tort liability for accidental injury is constructed around fault or strict liability. The “universality” of fault liability is, rather, a question about the percentage of the legal landscape for unintentional harm that the institution of negligence liability governs. Building on this point, The Historical Development of the Fault Principle shows that the age of “universal fault liability” is better described as an age where “no duty” predominated. Tort liability – fault liability retreated whenever contract was capable of taking hold of a domain of accidental injury. It retreated both in the presence of contractual relations (in the workplace context) and in the absence of contractual relations (in the product context). Property, contract, and “no duty” all trumped tort. This insight not only changes our understanding of the rise of fault liability; it also provides a powerful rebuttal of the still influential, if waning, view that the common law of torts circa 1870-1905 was economically efficient.

Rabin’s critique leaves intact the thesis that negligence liability itself emerged as a freestanding form of tort liability at the end of the nineteenth century. Prior to that time, negligence was merely the mental element of a number of discrete, nominate torts. Late in the nineteenth century, negligence transforms into a norm of conduct and thereby emerges as a distinctive form of tort liability. This development sets the stage for the expansion of fault liability into the domains of product accidents, landowner liability, and some forms of pure economic and emotional harm. The late nineteenth century thus sets the stage for the “universal fault liability” that it so conspicuously fails to achieve.

Recovering Rylands argues that Rylands v. Fletcher represents a parallel development with respect to strict liability. Rylands generalizes ancient forms of liability in nuisance and trespass into a coherent, general alternative to fault liability. The opinions in the case both articulate strict liability as a general principle of responsibility for harm done and clarify the fundamental perception on which strict liability rests, namely, that harm justifiability inflicted – harm which is unavoidable in the sense that it should be inflicted – can trigger responsibilities of repair. The idea that the justified infliction of harm gives rise to responsibilities of repair stands in sharp contrast to the root premise of fault liability, and accounts for the enduring significance of strict liability as form of legal responsibility for harm done.

After excavating the basis and nature of strict liability in Rylands, the paper traces the ebb and flow of the strand of strict liability that it inspired over the past century and a half. On the one hand, that history shows that fault liability is never universal, though generally dominant. On the other hand, that history suggests that the difficulty of attributing harms to activities without deploying a fault criterion may be a permanent, insurmountable barrier to universal, common law strict liability. Last, but surely not least, Rylands’ articulation of strict liability as a general idea is an essential part of the formative moment of modern tort law that Bob Rabin did so much to help us understand. Adding an account of Rylands is a way of building on his seminal contribution. Read More

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Recommended Reading: David A. Super’s Against Flexibility

Cornell Law Review just published Professor David Super’s article Against Flexibility, a forceful and engrossing indictment of flexibility and legal procrastination at its core.  Here is the abstract:

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier.

Disaster response illustrates the folly of legal procrastination as it shrinks the supply of decisional resources while increasing the demand for them. After Hurricane Katrina, programs built around flexibility failed badly through a combination of late and defective decisions. By contrast, those that appreciated the scarcity of decisional resources and had developed detailed regulatory templates in advance provided quick and effective relief. 

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Q&A with Lior Strahilevitz about Information and Exclusion

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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What is a treaty? Is that the right question?

(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 More

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Constitutional Redemption

Jack M. Balkin’s profound book, Constitutional Redemption, develops an aspirational interpretation of the Constitution. The presentation is not nostalgic; rather, Balkin provides a hopeful picture of an evolving form of constitutional interpretation. His methodology requires the reexamination of existing social morality and political forms but not an abandonment of the Constitution’s commitments to standards and principles of justice.

Balkin’s narrative of redemption speaks of unfulfilled promises made at the nation’s founding. These promises, he argues, should guide reform. Improvement, amendment, and advancement are not merely results of blind flux, but concerted efforts to achieve the “promise[s] of the past.” He neither seeks nor engages in constitutional idolatry, but a belief that the ideals of liberty and equality imbedded into the document can mold public opinion against injustices that violate them.

Such a grand vision is based on faith that the Constitution’s flexible framework will be instrumental to the achievement of social justice. Balkin’s perspective is positioned with the leanings of scholars like Mark Tushnet, , Sanford Levinson, William Eskridge, and Larry Kramer, who regard social and political movements to be important actors for “shifting the boundaries” of what are considered to be reasonable and plausible alternatives to existing inequalities. According to Balkin’s perspective, the effect of civil rights groups on our understanding of the Constitution is reflected in cases like Brown v. Board of Education, Reed v. Reed, and Lawrence v. Texas. These decisions, indeed, bear witness to the ability of litigation groups–like the National Association for the Advancement of Colored People, Women’s Rights Project, and the Lambda Legal Defense and Education Fund–to integrate visionary popular activism into a constitutional framework compelling enough to alter Supreme Court decisionmaking.

I believe that in Balkin’s redemptive vision of constitutional interpretation lies, arguably, the central paradox of American history. The nation was built on the principled foundations of the Declaration of Independence, which recognizes universal inalienable rights like life, liberty and the pursuit of happiness, but from its inception the United States failed to fully carry those ideals into law. The Declaration too, I argue in a forthcoming book, offers the sort of visionary (or in Balkin’s language redemptive) possibilities that drove Abraham Lincoln’s vision of federal government and Martin Luther King, Jr.’s advocacy of reform.

While the founding document spoke in terms of liberal equality, not quite twelve years after the Declaration was signed (on June 21, 1788 when New Hampshire became the ninth sate to adopt the Constitution) the Constitution’s notorious protections of slavery became binding. That is, the Constitution was not merely a step forward in the establishment of binding institutions pregnant with redemptive possibilities but also a document that compromised some of the ideals of the Revolution. Even the ratification of the Reconstruction Amendments did not lead to immediate redemptions of those original ideals. But I believe that Balkin is correct, that the Constitution just as its legal forerunner, the Declaration of Independence, contains the necessary kernels of wisdom that allow for the national and human evolution of understanding about the significance of due process, equal protection, and the pursuit of happiness.

Balkin correctly points out that the many failures to live up to the nation’s ideals do not diminish the value of anti-classist promises the nation made to improve of people’s welfare. His redemptive model helps explain why abolitionists could condemn the nation for its gross failures while clinging to its ideals. The original documents were useful for those who condemned the nation’s existing practices and for those who sought a jubilaic plan for its reform.

A letter published in abolitionist Frederick Douglass’s newspaper, The North Star, mocked the Declaration of Independence’s assertion that “all men are created equal.” The author insisted that the document should be rewritten to say, “All men are created equal; but many are made by their Creator, of baser material, and inferior origin, and are doomed now and forever to the sufferance of certain wrongs–amongst which is Slavery!” To blacks, the writer went on to say, the Fourth of July was “but a mockery and an insult.” To the advocates of slavery, he surmised, “liberty and equality” meant no more than the noises of firecrackers, raised flags, and other raucous festivities. J.D. “The Ever-glorious Fourth”, North Star (Rochester, NY), July 13, 1849.

But there was more to be said about America; it was not merely a composite of its failures but also a set of affective and effective norms. Despite the nation’s failures, the Declaration of Independence committed the country to liberal equality. In this context, an ex-slave’s daughter described her father’s awakening when he heard the Declaration read aloud. From that moment, she wrote, “he resolved that he would be free, and to this early determination, the cause of human freedom is indebted for one of its most effective advocates.” Biography of an American Bondman, by His Daughter 15-16 (1856). Her father, William Wells Brown, successfully escaped in 1834, later to become a prolific novelist and abolitionist lecturer.

The author of Douglass’s paper reflects the failure to live up to the substance of freedom. But Brown’s experience speaks to the possibility of unfulfilled aspiration to inspire and guide individuals, and perhaps even the nation, to liberal equality. This ability to animate hope even in the course of culturally accepted injustice demonstrates the Constitution’s redemptive quality, providing visionary revitalization of existing institutions and leading to social beneficial revision.

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Jack Balkin’s Constitutional Redemption: A Much-Needed Dose of Optimism

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin’s book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution’s promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin’s descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin’s theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues – from race to abortion to labor – and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental – to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff’s claim, it is often because that claim has already affected the culture more generally.

Balkin’s second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

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Cyberharassment’s Waterloo

I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…

For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.

My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.

Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.

Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.

This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…

I look forward to continuing this and other discussions with this splendid community.