Chicago Cubs and the Curse of Legal Formalism

On Saturday night, Deven's Los Angeles Dodgers beat the Cubs 3-1, completely a dominating three-game sweep in the National League Division Series in which they outscored the Cubs 20-6. Thus will it be more than 100 years between world championships for the Cubs, who famously last won in 1908. This century of losing has been blamed on everything from billy goats to black cats to twenty-something fans in head phones to the refusal to install lights at Wrigley Field. I want to suggest a new source: legal formalism.

In addition to being the centennial of the Cubs' last championship, 1908 also was the centennial of one of the game's most infamous gaffes, by Fred "Bonehead' Merkle. Some detailed history. On September 23 of that year, the Giants and Cubs, tied for first place, played at New York's Polo Grounds. Tied 1-1 with two outs and runners at first (Merkle, then a rookie first-baseman) and third, the Giants' Al Bridwell singled, scoring the runner from third, and apparently winning the game.Giant fans immediately ran onto the field, a common practice in those days, both to celebrate and to head to the stadium exit in right field that was closest to the trains and streetcars home. To get out of the crowd, Merkle turned right and headed for the clubhouse, which was located behind centerfield (the Polo Grounds remains my favorite of the now-deceased ballparks), without touching second base. That left the force at second base in effect. Amid the chaos, Cubs second baseman Johnny Evers got a ball (no one knows for sure whether it was the actual ball that had been hit on the play and that fact never has been established; some stories have a Giants player throwing the actual batted ball into the stands) and tagged second base and umpire Hank O'Day called Merkle out on the force, which nullified the run and ended the inning. The game then was called because of darkness and declared a tie. The teams finished the season tied, so the tie game was replayed; the Cubs won 4-2, winning the pennant and then the World Series--their last.

And here we have legal formalism at work. O'Day's call was correct under MLB rules. A run does not score if a trailing runner is forced out at another base for the third out of the inning. And there seems no dispute that Merkle did not touch second. On the other hand, the crowd had stormed the field, so Merkle's decision to get off the field as quickly as possible is understandable. It was common in those days for fans to come onto the field and for players to head for safety, even without touching the base. The rule was not well-known and was not regularly (if ever) enforced in end-of-game situations. And, of course, we do not know whether the ball that Evers had when he tagged the base was the right ball. On the other hand, some accounts have Evers trying the same move a few weeks earlier on the same umpire--it did not work then because the umpire had not watched to see whether the runner touched second. But O'Day was on notice when it counted.

So how does karma work? One way would be to deny the Cubs the benefit of the "tainted" victory by having them lose the World Series. Another way would be to give the Cubs the benefit of the Series that year--and never letting them have it again. So, if you are an 8-year-old Chicagoan in 1908, which do your choose?

By the way, I have been looking at current Major League Baseball rules (Download 04_starting_ending_game.pdf) and it appears the result would be the same under current rules. Rule 4.09(a) addresses this situation and requires that all runners touch the next base. Rule 4.09(b) provides that in a walk-off situation (run scoring in the last half of the final inning), the runner on third must touch home and the batter must touch first, with no mention of any other runners. But that rule is limited only to plays with the bases full which force the runner on third to advance--not the situation in 1908, because the runner on third was not forced to come home. A comment creates an exception when fans rush the field and prevent either from touching the necessary base, with the bases awarded because of fan interference. But that comment is limited only to Rule 4.09(b), which, again, does not cover the 1908 situation. Am I reading the rule correctly?

Or maybe umpires impose flexibility as a matter of their own discretion. In 1976, the Yankees won the ALCS when Chris Chambliss hit a home run to lead-off the ninth inning. Thousands of fans descended on the field to celebrate, pull up grass, and (I have read) try to steal pieces of padding off the outfield fence) as Chambliss tried to get around the bases; he eventually gave up and ran for the safety of the clubhouse. Later, after the field had been cleared, the umpires pulled Chambliss out of the clubhouse and had him touch home plate. Formalist, to be sure. Call this a mix of formalism and pragmatism--make sure the batter touches the bases, but allow him to get out of the madness of the moment without penalty.

Posted by Howard_Wasserman at 03:10 PM | Comments (0) | TrackBack

Cardozo and Posner on Contracts and Torts

Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.

A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.

This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.

This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).

Similarities include the judicial roster. Cardozo is again firmly in the lead, now with Posner second by a good margin. These are followed by Mock, Traynor and Hand. (For now, we’re setting aside Supreme Court justices whose opinions on constitutional torts (privacy, defamation) play starring roles in some torts casebooks.)

Differences appear in other data points. Cardozo has an aggregate of 10 opinions reproduced in the Torts casebooks whereas Posner has an aggregate of 25 opinions reproduced. All but 1 of Cardozo’s appearing opinions appear in multiple books and most are reproduced in more than a third of the casebooks. In contrast, more than half of Posner’s appearing opinions appear in only 1 book and only 2 appear in more than half the books.

According to the collective Torts casebook editors, there is clearly a Cardozo canon; no consensus appears concerning any Posner canon. These editors know that including Cardozo’s contributions is vital and overwhelmingly agree on which of his contributions are most vital; editors also appear to believe that including Posner’s contributions is vital, but show very limited consensus on which those should be.

Other preliminary discoveries of interest are that the roster of leading Torts judges, measured by casebook impact, is dominated by judges from the state courts of California and New York (along with federal judges sitting in New York, especially Hand). The Contracts results also featured many California and New York state judges but also included judges from Connecticut and Massachusetts. Since Posner is a federal judge sitting in Chicago, these points underscore how significant Posner’s emerging dominance in the Contracts and Torts casebooks is. A goal of this new article is to continue to look into why this is so and what it may mean.

Posted by Lawrence_Cunningham at 10:50 AM | Comments (2) | TrackBack

Summer Reading

As the summer slips away there may still be time to read. For that matter if one is in academia, one should find time to read no matter what. Dan's first bit of advice to me was read, read, and oh yeah read. Now I entered the field in part because I missed reading and writing. I love the fact that when I say I worked on the weekend, people think "Oh, too bad," while I think I just enjoyed what I was doing, but it happens to be part of my work. As I tell my students, lawyering is a nerdy profession. Don't fight it; EMBRACE THE NERD WITHIN. One way to do that is, you guessed it, to read. So what should one read? That depends on the topic of interest of course. Nonetheless, one person has started a great project that merits a nod.

Patrick O'Donnell's list of biblographies at Ratio Jurist is a great public service. Take a look. Given the number of topics he wishes to cover in the future, he needs some sense that people care. Checking out his lists and perhaps even sending him a thank you note is nice way to do that. Who knows? Perhaps you can convince him to post his list on capital punishment or science and technology just in time for you to start that super cool article.

One last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument. In addition, if one feels that the job is boring or not a fit, read about the area you want to be in. That way when the opportunity to enter that field of your dreams arises, you will at least show that you really do know the area and are dedicated to it. Experience in an area matters of course but so does evidence that you love the field and wish to excel in it.

Posted by Deven_Desai at 02:06 PM | Comments (4) | TrackBack

"For Every Three Judges, Two Are in the Fire": Richard Posner and the Usul al-Fiqh

I've been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner's theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are -- and ought to be -- forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn't preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the "the law" as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual -- albeit practically constrained -- judgement about what would -- all things considered -- be best. One doesn't get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner's decisions is really bad, it really is Judge Posner's fault.

Where Judge Posner's theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God's law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur'an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered -- not deduced from or promulgated in accordance with -- with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur'an is not a legal code. Rather it is a collection of "recitations" -- often in the form of religious poetry -- given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these "recitations" were collected into the Qur'an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will." Hence, there was no sense in which a jurist could hide behind some abstraction like office or "the law" to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.

According to one Muslim legal aphorism, "For every three judges, two are in the fire." The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one's eternal soul was on the line. I don't think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.

Posted by oman at 12:37 PM | Comments (7) | TrackBack

Neuroeconomics and Innovation

I'm in LA for the next few days, at the Law, Economics and Neuroscience Conference: Implications for Innovation, sponsored by The Southern California Innovation Project, Theoretical Research in Neuroeconomic Decision-making (TREND) and The Center for Communication Law & Policy. As the press-release says, the idea is to bring together neuroscience researchers, economists, and ordinary law professors and see if the whole is greater than the sum of their parts.

[Gillian] Hadfield [who is organizing the conference on the law side] hopes the symposium will lead to more collaboration among scholars who may appear to have very different goals and backgrounds.

“You don’t usually find scientists, economists and lawyers talking together about the same topic,” Hadfield said. “I think people will find that we can enrich the research agenda of all these disciplines with this kind of cross pollination.”

I hope to blog the conference, or at least my parts in in, over the next few days. I'll be commenting on Mat McCubbins' co-authored paper, The Effect of Institutions on Behavior and Brain Activity: Insights from EEGs and Timed-Response Experiments. In the paper, on Boudreau, Coulson, and McCubbins found that identical cooperative behavior in a trust game seems to arise from distinct neurological mechanisms, depending on whether trust in others arose from incentives or penalties. After the session tomorrow I'll post some of my comments, which intend to connect this paper to the large law review literature on trust.

Posted by hoffman at 08:15 PM | Comments (0) | TrackBack

The To-Be-Blogged Pile

As the semester draws to a close, I'll be adding a couple features to my blogging here. First, there's always a big pile of stuff each week I'd like to blog on, but don't get around to. So I'll just post links to the articles, ala Tyler Cowen. Second, I'll be trying to do a series on art & politics this season. Having lamented the press repeatedly, I think I owe it to readers to comment on people who are thinking more creatively about the political scene. . . including Kenneth Tin-Kin Hung, Timothy Donnelly, MIA, and Paul Chan. Without further adieu:

1. Have a tough time memorizing things? Check out this software program by Piotr Wozniak (which I'm definitely consulting if I try to re-learn Spanish).

2. Patrick S. O'Donnell both comments incisively on the food crisis and rounds up posts from around the blawgosphere. O'Donnell and Paul Horwitz have an interesting discussion on sustainability here. My own take would begin by comparing an article on the new living standards of very poor persons, and one on a "Club Med for Dogs."

3. China's new weapon: Low executive pay. Over to you, Todd Henderson.

4. Yale U. Press leads the way in opening access to books on internet topics. [Full disclosure: they do advertise here.]

Have a great weekend.

Posted by Frank_Pasquale at 04:32 PM | Comments (0) | TrackBack

Torture for Tots

Readers of Larry Solum’s Legal Theory Blog might have noticed yesterday abstracts for several new papers from heavy hitters in the legal academy. My favorite of these April 1 abstracts was the Cass Sunstein-Adrian Vermeule paper on “Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors.” “Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.” Download that while it’s hot!

A good April Fool's joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture for tots. All you need is the right hypothetical.

And yet, I think Larry Solum is right that torture for tots is a proposal that most will view as a joke. Indeed, it's a prospect that might help test the claim that we torture when, and if, and only if, necessity demands it. In a seminar discussion a few months ago, I suggested that contemporary support for torture might be driven by a presumption that those who are tortured deserve to be treated thus. Some of those present resisted this characterization, claiming that the arguments were based strictly on necessity, so I offered a hypothetical in which the only way to find the location of the ticking bomb is to torture the terrorist’s innocent young child. As I recall, none of my fellow seminar attendees wanted to defend torture under those circumstances.

A previously unreleased torture memo penned by John Yoo became available yesterday. Marty Lederman links to Part 1 and Part 2 and discusses the memo. David Luban addresses torture for tots, and other weaknesses of ticking bomb arguments, in a new paper available here. And in "Professors Strangelove," available here, I offer some thoughts on torture, national security tough talk, and one of my favorite movies.

UPDATE: My soon-to-be colleague Frank Pasquale points out this Salon piece, which includes a link to a fascinating Youtube clip on the question of torturing children.

Posted by Alice_Ristroph at 11:37 AM | Comments (2) | TrackBack

Law Talk: A Roundtable on Justice and Insturmentalism in Private Law

Over the weekend, the Association for the Study of Law, Culture, and the Humanities held their annual conference at Boalt Hall. This podcast episode is a recording of a roundtable discussion on justice and insturmentalism in private law, which was organized for the conference by Jeff Lipshaw. The participants include Pete Alces (William & Mary), Robin Kar (Loyola LA), Alan Calnan (Southwestern), and Nate Oman (that's me). The discussion focuses on the philosophy of tort law and contract law, with Pete sounding a skeptical note using evolutionary biology. Enjoy!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 11:01 AM | Comments (0) | TrackBack

The Constitution as Ritual

One of the attractive features of originalism, I think, derives from the belief that sentences simply mean what they originally meant, either to the speaker or to the audience. This is a definitional argument: the definition of "to mean" is "what was originally meant," and thus, by definition, if the Constitution does not mean what it originally meant it does not mean anything at all (in the same way that the set of all square circles is an empty set). I think this argument is mistaken. I think there are other sorts of sentences out there that have legitimate meanings that are not those necessarily assigned by either speakers or audiences (actual or potential) at the time.

Definitional originalism is usually argued for by analogizing the Constitution's sentences to ordinary English sentences spoken in a quotidian context. For example, suppose you're given a map with instructions written on it by a pirate telling you how to find his treasure. (OK, that may not be quotidian, but you could easily change the hypo to make it so: say it's a grocery list.) If you want to find the treasure, you need to know what the words would have meant to the pirate's likely audience. Fail to do that, and you fail to find the treasure.

Of course, if you really want to find the treasure, you need to know what the pirate actually intended, not just how audiences at the time would likely have interpreted the words. This is the point made by Stanley Fish recently in the Cardozo Law Review: the marks and sounds that ordinarily connote meaning are not "communications" at all unless and until they are communicating an intelligent being's intended message. This, of course, is the old, disreputable "original intent originalism." Fish argues, however, that whatever the practical difficulties it may pose, interpretation simply is the search for original intent. For example, if one knows that an alarm bell in a building is being rung by a monkey, it doesn't mean "fire;" it means nothing at all. To paraphrase Hilary Putnam, Fish's theory is that meanings just are in the head. And for the treasure map, it appears Fish is correct, at least if you want the treasure.

The problem with definitional arguments is that there is no good way to argue for them. If one's interlocutors don't buy the premise, then there is little to do but repeat it, perhaps while jumping up and down and waving one's arms around. And it is particularly difficult if the proposed definition doesn't cover the universe of possibilities.

So it is with Fish's argument. If Fish were correct--that the only possible interpretation of a sentence is the one intended by the speaker--then once one receives definitive proof of what was intended, that should end all arguments as to what the sentence meant. But of course that's ridiculous. People have long, drawn-out, and perfectly reasonable arguments all the time of the form: "That may have been what you intended, but that's not what you said!" In other words, the sentence you spoke has a meaning other than what you intended, and I'm justified in interpreting it that way regardless of what you may have meant. This debate is over whether speaker's meaning coincides with sentence meaning--the meaning a reasonable contemporary listener would place on it--and if not, which takes precedence. As near as I can tell from his article, Fish's argument would make all such disputes meaningless babble. That's a problem for Fish.

Most originalists now subscribe to the theory that what Constitutional sentences mean--what they should be interpreted to mean--is what they mean in this latter sense: the meaning that reasonable contemporary listeners would have assigned to the sentences. That is, most originalists now place Constitutional sentences in the same category as ordinary conversational sentences or correspondence, rather than the categories that would work best for Fish: codes, treasure maps, instructions. If the Constitution were a conversation or a speech (but not a treasure map), then focusing on original public meaning would be a perfectly plausible way to go about interpreting it.

However, original public meaning originalists (such as the New Originalists) face a Fish-like difficulty. Namely, there are still more categories of sentences, and the Constitution falls outside the domain where original public meaning holds sway. The Constitution is not a conversation or a speech or a treasure map. It is not even just a statute, as Jack Balkin implies in arguing that original meaning controls constitutional interpretation because it controls statutory interpretation. Rather, the Constitution is a declaration, by "We the People," of the most fundamental principles of the government of our society. It is something more akin to a ritualistic affirmation, a cultural declaration of faith, along the lines of a religious ceremony or a pledge such as the Pledge of Allegiance.

And that puts the Constitution in a different class of communications than mere conversations, messages, instructions, and treasure maps. An affirmation, used as a ceremonial induction into a particular group or community, is continually being re-spoken as new members join. The meaning of the affirmation at any given time is thus the meaning ascribed to it by the relevant community at that time, not at the time it was first written. Take, for example, the responses required of Catholics at Confirmation:

Bishop: Do you reject Satan and all his works and all his empty promises?
Candidates: I do.

Bishop: Do you believe in God the Father almighty, creator of heaven and earth?
Candidates: I do.

Bishop: Do you believe in Jesus Christ, his only Son, or Lord, who was born of the Virgin Mary, was crucified, died, and was buried, rose from the dead, and is now seated at the right hand of the Father?
Candidates: I do.

Bishop: Do you believe in the Holy Spirit, the Lord, the giver of life, who came upon the apostles at Pentecost and today is given to you sacramentally in confirmation?
Candidates: I do.

Bishop: Do you believe in the holy catholic church, the communion of saints, the forgiveness of sins, the resurrection of the body, and life everlasting?
Candidates: I do.

This text is derived from the Nicene Creed, first set down in 325. Suppose at that time the people writing, reading, or speaking the Nicene Creed in 325 all had a different view from Catholics today of what the Holy Spirit was. It would make no sense to say that that understanding governs the Confirmation oath today, and that this is true due to the fact that the creed was written down. Surely what governs the meaning of the Confirmation oath today is what Catholics (as a group) today would understand it to mean, even though Catholics today are not the original drafters of the text.

The Constitution is a foundational set of rules and principles that defines the United States, just as the Confirmation oath is a foundational set of beliefs that defines the Catholic community. Of course, most people do not read the Constitution out loud and swear to uphold it -- some government officials do, but not most ordinary citizens. But I don't believe that changes the character of the document. Whether or not each individual citizen swears to uphold the Constitution, reads it aloud, or even reads it silently, by and large Americans understand its special importance in American political and legal culture and its significance in defining the United States as a nation. As Balkin himself has written, albeit in the course of making a different argument, "[e]ach generation must figure out what the Constitution's promises mean for themselves." They must figure it out for themselves because each generation adopts it anew, as each generation of Catholics affirms the content of the Nicene Creed anew.

In the course of adopting it anew, there is some opportunity for slippage in the meaning that is being passed from the prior generation. Over time, that meaning can come to nullify a clause entirely or change its meaning to the opposite of how the text was originally read. But, contrary to the standard objection of originalists (and the occasional practice of non-originalist judges), that change can't happen overnight, without mass participation. One cannot validly affirm one's own private Confirmation oath. There must be a community change, not a solipsistic event.

It might be thought that, whatever its merits as a description of community ideology, basing the interpretation of the document on the theory that it is agreed to anew every generation would compel the adoption of a similar basis for legitimacy. That is, reading the Constitution as continually reaffirmed requires basing its legitimacy as a binding document on that reaffirmation. And, as Randy Barnett argues, the Constitution's modern legitimacy cannot be based on meaningful consent of the governed. Modern citizens are not given a choice whether to agree to the Constitution or not, except the Hobson's choice of voluntary exile. Barnett argues that the only other option is to base the Constitution's legitimacy on the written text that was originally ratified plus a very constrained ability to construe vague phrases in a way that does not contradict or nullify the text.

But I don't think I'm committed to making that connection. I don't think the mere fact that affirmations are sometimes voluntarily entered into means that their legitimacy necessarily derives from consent. Many, perhaps most, religious adherents would not view membership in their church as something that is truly optional. Leaving the church might be as much of a Hobson's choice as moving to Canada. And yet one cannot be a Catholic and not take the Confirmation oath. Nevertheless, Confirmation is an important ceremony, so important it gets its own sacrament. It is a moment in which members pledge their fealty to a set of beliefs that defines the community. It gains its legitimacy, not from unfettered choice, but from the fact that the entire rest of the community one is formally joining has done the same thing.

Similarly, societal rules do not in general gain their legitimacy from consent. To take a trivial example, the rule that one must form a straight line to buy tickets at a ticket window has not been formally agreed to by anyone. No one asked me if I would prefer that Americans adopt the Beijing practice of forming a semi-circular scrum around the ticket window, which equitably rewards those who are in more of a hurry at the expense of those who have more time. (I'm curious how this will play out at the Olympic events this summer.) Nevertheless, I'm bound by that rule, simply from the fact that I'm an American in the United States. Each generation is similarly bound by the Constitution, as that document and its meaning is adopted by the community as a whole.

Posted by Bruce_Boyden at 02:12 AM | Comments (15) | TrackBack

The New Originalism: Answering the Questions Nobody Asks?

Originalism is back in the blogs. Michael Dorf posted a brief column on Findlaw, Who Killed the "Living Constitution"?, followed by a comment from Larry Solum, a rejonder from Randy Barnett, a response from Dorf, and another reply from Barnett. (This follows the flurry of activity a couple of weeks ago on the meaning of "natural born citizen" -- see Jim Lindgren, Solum, Jack Balkin, and Solum). This debate is over "New Originalism," and how much New Originalism differs from Old Originalism or from "Living Constitutionalism" (presumed to be the only other choice -- more on that in some other post).

Balkin, Barnett, and Solum are all "New Originalists" -- originalists who stress, not the original intent of the authors of a particular legal text, which is unrecoverable in many instances, but rather its "original public meaning" -- the meaning that a given sentence would have been assigned by its audience at the time it was drafted. Over the past few years, in a book by Barnett, in two articles by Balkin, in numerous blog posts, and in various other places the general contours of New Originalism have been delineated. Broadly, New Originalism looks to original public meaning to the extent that is helpful; if not, then the interpreter of a constitutional provision is free to look elsewhere for meaning, such as the structure of the text, court precedents, or what have you. That latter process, drawing from the work of Keith Whittington, is called "construction," to differentiate it from "interpretation" of the Constitution, which (the story goes) requires looking only at original public meaning. New Originalism can therefore be thought of as a kind of Chevron two-step analysis for constitutional law: (1) Is there a clear original public meaning? (2) If not, is the proposed interpretation reasonable under other interpretive methods?

Dorf argues that, to the extent the analysis stops at Step One, New Originalism can produce some "odious" results, a remark Barnett takes him to task for. I would modify Dorf's concern to add that the problem is not so much "odious" results, but bizarre results; results not only out of step with where the law is, but out of step with any plausible account of where it's going--which is what would distinguish, in my mind, Sweatt v. Painter from a decision finding, for example, that the original public meaning of the letters of marque clause was to permit Congress to require the entire citizenry to wear chicken costumes on Sunday. Sure, that's ridiculous; but suppose we dug up incontrovertible evidence that that's what the public would have understood by it (what else could "letters of marque" mean?). Barnett is apparently willing to bite the bullet and say, well, if that's what the original public meaning was, we're stuck with it, until the Article V amendment process runs its course. Break out the chicken suits.

But although that debate is philosophically interesting, I don't think it's where the real action is, so resolution of that particular criticism of Dorf is not terribly important. Rather, my impression is that Barnett, Balkin, and Solum believe relatively few controversial questions will actually get resolved at Step One. (I should note that Balkin's Step One, by explicitly incorporating "principles," can be Step-Two-like. I don't think that fundamentally changes my analysis.) Rather, most questions will be proceeding to Step Two.

And Dorf's criticism there is, Step Two is not a heck of a lot different than Living Constitutionalism. Nearly all of the interesting constitutional interpretation issues jump immediately to Step Two--the nonoriginalist part of New Originalism. That is, all of the phrases of the Constitution that produce actual litigation--"equal protection of the laws," "due process," "commerce," "necessary and proper," "freedom of speech," "cruel and unusual punishment," etc.--all are vague, and therefore not susceptible to Step One resolution. Original public meaning can do nothing to resolve any of those disputes.

This, according to New Originalists, is actually a feature of their theory, not a bug. Original public meaning gives us the bedrock on which constitutional interpretation rests; it tells us that when the Constitution says "thirty-five years old," it can't be read to allow a president who is only thirty; it tells us that the obligation of the national government to protect states against "domestic violence" does not refer to spousal abuse. The problem is, no one argues those issues. There are no cases in which someone petitions the Supreme Court for a ruling on whether states should get three senators. New Originalism answers the questions no one asks.

That's actually fine, if New Originalism were meant as a blow in the battles between philosophers of language. Philosophers of language have been struggling for decades to figure out how simple sentences such as "The cat is on the mat" or "Water is wet" come to have the meanings they do (assuming they have any meaning at all). But I think it's fair to say that the promise of originalism has been far different than that. Rather than a theory of constitutional language, originalism has long been billed as a theory of interpretation--a theory that, when skillfully applied, will give us the answers to the really hard questions in constitutional law: is there a constitutional right to privacy? Why is Brown v. Board of Education rightly decided (or is it)? Is campaign spending free speech? Is it "necessary and proper" to the Commerce power for Congress to regulate home-grown wheat? What level of notice of a proceeding is required by due process?

The originalist part of New Originalism--Step One--does not provide answers to those questions. It only, as far as I can tell, makes us jump through an extra hoop before getting to where the action really is: non-originalist Step Two of the analysis, where courts and other interpreters can look at precedents, structure, history, context, public policy, and other sources of meaning.

If that's how New Originalism would work in practice, it's not even a second-best interpretive choice, as Barnett puts it. In most cases, it's simply an unnecessary hoop before the main action -- figuring out what the Constitution means today.

Posted by Bruce_Boyden at 06:48 PM | Comments (12) | TrackBack

The Epiphenomenal Soul

Jeff Lipshaw has a good discussion of the recent journalistic obsession with experimental philosophy (x-phi). He also promotes a less modish work by Susan Neiman, entitled Moral Clarity. The x-phi crowd is very interested in recording the brain activity of subjects who are asked questions about whether, say, they would divert a trolley that was going to kill two persons onto a track where it would only strike one person. Neiman asks the following questions (among others):

What kinds of heroes are modern heroes? How do we talk about evil without slinging curses and mud? Learn to make moral judgments without clear instructions? Where does optimism end, and hope begin?

Having skimmed Neiman's introduction, I hope her questions get at least the level of attention that the x-phi crowd gets.

Consider a recent transcript from the radio show Justice Talking, where a leading x-philer (Joshua Greene) discusses the implications of his research.

MARGOT ADLER: Brain scans are showing up in the courts for all kinds of cases, sometimes to raise questions about diminished capacity to form intent to commit a crime. Does brain imaging really show this?

STEPHEN MORSE: It couldn’t possibly show this. There are two points to make clear right at the beginning: The criteria in law for responsibility and competence are all behavioral, broadly speaking, to include mental states and actions, and unless there was an absolute precise correlation between the behaviors the law was concerned with and particular brain findings, brain findings can’t show diminished capacity. All they can show is a state of the brain. A stateof diminished capacity is a state of diminished rationality. That’s a behavioral state.

MARGOT ADLER: Josh, do you agree with that?

JOSHUA GREENE: I suppose that I come to this from psychology and philosophy as well as neuroscience. And I have some doubts about whether or not the letter of the law really conforms to people’s intuition about who’s responsible and who’s not. So the law says that you’re responsible for this bad thing, that you did — if you were rational at the time, that you committed the act. And that’s a consistent standard that one can attempt to apply. But I think that it’s not necessarily what people really deeply intuitively have in mind.

Was it this person? This mind? This soul that committed this crime? Or was it just some mechanical thing, like a brain tumor or something they couldn’t control, like their genes or something like that? And the reason why we’re prompted to ask this question — can brain imaging change the way we think about the law — is because what neuroscience does is it gives us a mechanical picture of a human agent. And I think that that mechanical picture — even though I think it correct, is not compatible with our ordinary intuitions about, responsibility. And so I think that’s where this tension comes from, and that’s why the questions about neuroscience and its implications arise. (emphasis added)

Greene is a scrupulous scientist, and I have no little doubt that he accurately conveys the "mechanical picture of a human agent" that his studies suggest. But every research program is driven by a particular agenda, and it's useful to elucidate Greene's:

MARGOT ADLER: Even if we don’t understand all of that, the fear, I think, that many people have is that as this goes forward all of our notions of free will are going to be sort of thrown out the window. Is that where we’re going? Josh?

JOSHUA GREENE: I think that what’s exactly going to happen, eventually, and this may take 500 years or 1,000 years, but eventually is that our major notions of free will are going to go out the window. That is, free will as we ordinarily conceive it as, the behavior of an unmoved mover, as a mind that is separate from the causal flow of the universe.

I'm perfectly willing to entertain Greene's metaphysics here, but it's important to see how much it may be driven by his theory of ethics. For example, consider his discussion of a hypothetical derived from a MASH episode in the last five minutes of this radio show (sorry, no transcript!).

To summarize very briefly, Greene posits a scenario whereby a mother in a village hiding from a vicious enemy faces a tragic choice: allow her baby to cry and thus alert the enemy to their hideout (leading to the death of the whole village), or smother the baby and save the village. Greene finds that the persons who make the traditional utilitarian choice (smother the baby) have more activity in the "rational calculating" part of the highly evolved human brain; those who resist that option are more attuned to their inner chimp--the visceral, emotional side of thought. Though Greene hedges a bit, the direction of his thought is clear: as we understand the brain better, perhaps we'll be less enslaved to the counterproductive relics of evolution some deem central to their ethical thought.

The narrative of progress here reminds me of Martha Nussbaum's take on Agamemnon's self-justification in the face of killing his daughter in order to advance his war aims:

We notice two points in this strange and appalling utterance. First, his attitude towards the decision itself seems to have changed with the making of it. From the acknowledgment that a heavy doom awaits him either way, and that either alternative involves wrongdoing, he has moved to a peculiar optimism. . . . An act that we were prepared to view as the lesser of two hideous wrongs and impieties has now become for him pious and right. . . .[Fragility of Goodness, 35].

My sense is that Greene's peculiar optimism lies in an expectation that if he can convince enough people that certain inconvenient or inefficient moral responses are simply artifacts of evolution, the world can be made a much better place. My pessimism lies in an awareness that the more a "mechanized" view of the human mind becomes widespread, the more likely we are to be subject to (or enthusiastically embrace) the "shaping mechanisms" that make us more efficient economic competitors.

Finally, here is a review of Anthony Appiah's response to the x-phi trend:

[S]cientists around the world are exploring how we reason about right and wrong, looking not only at the usual pool of undergraduate volunteers but also at specialized populations like hunter-gatherers, children and psychopaths. And there is a rich body of theoretical work in behavioral economics and evolutionary psychology that attempts to explore the rationale behind our moral thoughts and feelings.

If I were a philosopher, I’d find this flattering but also a bit worrying, particularly since some of the scientists see their work as ultimately replacing traditional philosophy. For them, it is not a collaboration; it is a hostile takeover.

In the short and brilliant “Experiments in Ethics,” the Princeton philosopher Kwame Anthony Appiah discusses this research and what it means for ethics. Appiah isn’t worried at all. He starts by pointing out that philosophy has almost always had an experimental side. David Hume, for instance, was adamant that moral philosophy had to be grounded in facts about human nature, in psychology and history. Even Kant, among the most abstract and abstruse of scholars, mixed his moral philosophy with practical observations and suggestions, on topics including child raising (“games with balls are among the best for children”). The idea of philosophy as an isolated discipline, Appiah argues, is a relatively newfangled idea, and not a good one.

***

Talking about the genocide of the Tutsis in Rwanda in 1994, Appiah suggests that “if you or I had been planted on this earth as Hutus at that time and place, we too would probably have been participants.” While I think this point is often somewhat overstated (after all, there are those who behave nobly regardless of where they are, as well as those who are monsters in the best of times), Appiah is probably right when he concludes that we should place less emphasis on “character education” and focus more on trying to establish situations in which people’s better selves can flourish.

Some good support for the project of the Situationist blog.

Posted by Frank_Pasquale at 09:30 AM | Comments (1) | TrackBack

Constraint vs. Efficacy in the Study of State Action

In their broadest strokes, my scholarly interests revolve around questions of regulatory design - inquiries into the institutional forms that law and regulation variously take, and should take. Dynamics of coordination have been particularly salient for me, underpinning a potential role for non-coercive mechanisms of state action I term "regulatory cues," as well as cross-jurisdictional regulatory interactions I term "intersystemic governance."

In exploring these patterns, my work has often intersected with issues traditionally studied in the fields of constitutional and administrative law. Questions of U.S. federalism, the nature of federal jurisdiction, and judicial review have variously reared their heads; the nature of the modern administrative state, meanwhile, is front and center.

My various analyses of regulatory cues, intersystemic governance, and the like have also seemed to diverge from the constitutional and administrative law literatures, however, in a way that has always struck me as significant, but was only recently driven home, in relevant comments and work of others.

My earliest sense of the relevant divergence came some years back, when I was working on my very first article, and read the opening paragraphs of Jody Freeman's The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-46 (2000). She states (with citations omitted):

Administrative law, a field motivated by the need to legitimize the exercise of governmental authority, must now reckon with private power, or risk irrelevance as a discipline. Since the New Deal explosion of government agencies, administrative law has been defined by the crisis of legitimacy and the problem of agency discretion. Agencies can claim, after all, only a dubious constitutional lineage--the Framers made no explicit provision for them, but instead divided power among the legislative and judicial branches and a unitary executive. The combination of executive, legislative, and adjudicative functions in administrative agencies appears to violate the separation of powers principles embodied in the Constitution. Worse yet, despite their considerable discretionary power to impact individual liberty and property rights, allocate benefits and burdens, and shape virtually every sector of the economy, agencies are not directly accountable to the electorate.

Unsurprisingly, administrative law scholarship has organized itself largely around the need to defend the administrative state against accusations of illegitimacy, principally by emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative and executive oversight and judicial review. Scholars have expended considerable energy in particular on structuring and disciplining the exercise of discretion in order to limit agencies' freedom “to do as they please.” Only a handful of articles in the last sixty years, by contrast, have ventured beyond the traditional preoccupation with agencies and the project of constraint.

Freeman goes on to grapple with the question of the private role in public governance, the insight for which she is perhaps most famous. Beyond this discrete (if quite significant) point, though, I read the latter paragraphs to suggest an even deeper truth. As we have defined the discipline of administrative law (and constitutional law, I would venture to add), its underlying project - its basic motivation - is the constraint of government power (and perhaps executive power, most of all). It is, as Freeman's opening paragraphs emphasize, an analysis in the negative, of how we limit the scope of state action.

If this is correct, then the substantive counterpoint to the traditional conception of administrative law that Freeman outlines in her opening paragraphs is not merely an acknowledgement of the private role in public governance, but rather (1) a descriptive project of analyzing and understanding the true nature of the modern administrative state, and (2) a normative project of evaluating (and perhaps even enhancing) the efficacy of state action.

The first piece is fairly straightforward. We need to devote more of our energies to understanding the functional nature of the modern administrative state. Beyond questions of legitimacy and accountability, an understanding of modern administration requires attention to questions of how present-day regulatory agencies actually operate. Absent attention to such questions, we can reasonably predict - if not already observe - a significant disconnect between scholarly analysis of the administrative state, and the realities of its day-to-day operation.

I am particularly interested, however, in the second question, of the efficacy of state action. Whatever value the descriptive project of understanding the modern administrative state may have, it is this normative project, of its efficacy, that strikes me as the most weighty counterpoint to the traditional emphasis of constitutional and administrative law on constraint. Without disputing the importance of our close attention to the constraint of state action, legal scholars' distinct strengths in the study of institutions would arguably seem to warrant equal attention to studying and enhancing the efficacy of state action.

I think of my own work as broadly directed to this lacuna in our scholarly empahsis. But what has recently brought the issue of our relative inattention to the efficacy of state action to mind, have been a succession of recent references to questions of efficacy, in the work and comments of others:

(1) First, at a recent workshop, Deborah Pearlstein - previously Director of the Law and Security Program at Human Rights First, and now a colleague at Princeton's Program in Law and Public Affairs - reviewed a soon-to-be-completed article, in which she draws on organization theory to evaluate White House demands for the consolidation of emergency decisionmaking power in the executive branch. Is such concentration, she asks, actually more efficacious than the relevant alternatives? And, in any case, what weight should constitutional analysis give to claims that effective decisionmaking requires (or does not require) such concentration?

(2) At a Temple University workshop on Ruling the World: Constitutionalism, International Law and Global Governance, organized by Jeff Dunoff and Joel Trachtman, meanwhile, comments by Joanne Scott (from what I would characterize as an administrative law vantage) and by Vicki Jackson (from a constitutional law perspective) again raised this question of efficacy. Constitutional law, Vicki emphasized, is not only about limiting power. It must attend to the efficacy of governance as well.

(3) Finally, in his "ticket" to the most recently held, annual Constitutional Law Schmooze, on executive power, David Golove echoed this point. We must, he suggested, "appreciate how law is an essential component in a larger system of political decision-making, a primary purpose of which is to enhance, not impede, the effectiveness of executive action . . ."

Of course, these represent only a handful of relevant data points. In conjunction with other indicators, however, they lead me to wonder whether we may stand at an important juncture, perhaps particularly in our approach to the discipline of administrative law, but in constitutional law as well. Implicitly, of course, the question of efficacy has always been on the table, as the rejoinder to demands for constraint. As suggested by Deb's paper, thus, the asserted efficacy of unconstrained power is the exact argument made against constraint. Increasingly, however, the efficacy of state action may be emerging as a topic deserving the attention of legal scholars, not merely as a footnote to our study of constraint, but as a question in its own right.

Posted by Robert_Ahdieh at 09:28 AM | Comments (1) | TrackBack

The Future of Sensory Jurisprudence

[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we've made clear, our ultimate claim is not (cf. Kerr) that "Justice Scalia was privileging a conservative white male view" of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It's a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I'm going to make a bigger claim, one which isn't so much based on the paper or my co-authors' views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it's my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove's well-known post – and subsequent highly downloaded article – about the "I've nothing to hide" problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence ["SE"] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: "look, it's obvious!"

The connection between SE and surveillance is (ironically) made stark in a video ... but to see it, you'll need to read past the jump.

But this view of SE and the jurisprudence it will produce is too rosy. As we illustrate in our paper, the "facts" a reasonable jury would find after watching the Scott tape are culturally dependent (and also influenced by demographics, wealth, etc.). In a future where more legal cases are resolved based on SE, the danger is that law will ignore this prism effect, and simply embed the evidence as if it resolved the question of "what happened."

This isn't to say, of course, that surveillance evidence is a bad thing in and of itself. It can improve accuracy, reduce frivolous litigation, and deter wrongdoing (think about the various aspects of the CIA taping controversy). But, as I suggested in my first post on Scott, the idea that surveillance evidence will distill litigation into a simple search for truth is fundamentally misguided:

[C]ourts’ ordinary role to [is] determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. [Scott] has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

Not convinced? Read the paper (again?). It speaks for itself.

(Folks interested in this topic might also like Jessica Silbey's Judges as Film Critics: New Approaches to Filmic Evidence)

Posted by hoffman at 01:00 PM | Comments (2) | TrackBack

Traveling Hopefully

This will be my last post in this guest-blogging stint, and I want to express effusive thanks to Dan Solove, Frank Pasquale, Dave Hoffman, and the other proprietors of this space for their hospitality and encouragement. I also appreciate the fact that they, and not I, created a forum with several thousand discrete hits a day. It's quite an incentive to a blogger (or any other writer).

Joy is not the kind of thing that lends itself to either critical or even interesting analysis, but that has been my experience of this particular stint on Concurring Opinions. I remember discussing Milton's Paradise Lost in high school, and we all agreed that Satan was by far the most interesting character. Unhappiness or dissatisfaction is (ironically) so much more satisfying, and we indulge in it, whether it's why law professors are so unhappy, or why the law review system doesn't work, or why legal scholarship isn't really scholarship, or why lawyers think law professors are irrelevant, and so on. There's even a mystical explanation for this. In the Lurianic myths of the Kabbalah, the physical universe, as we know it, came about as the result of God's withdrawal (tzimtzum), which resulted in the shattering of the perfect glass "vessel" of the heavens. The shards of that shattered vessel are what we experience as the physical world. The repairing of the world, or Tikkun Olam, is the endless process of returning those shards to their perfect state. And how are we to do that without first identifying the miseries of the world?

You can really get into the repair of the world if you are out in the trenches on the front lines of life, whether you are fixing gutters (I just got an estimate for ours), litigating public or private disputes, or figuring out whether the universe is expanding or contracting (I figure we are going to have to understand the cosmological constant if we are going to reconstruct the shards at some point). The other day I referred to one of the tomes identifying some of what is wrong with the [academic] world, Julius Getman's In the Company of Scholars. In turn, Mike Madison pointed me to his Lewis & Clark Law Review piece quoting Getman to the effect that "research serves as a 'dress suit for academic elitism.'" Mike applies the concept of the "economy of prestige" to the question why law reviews don't seem to go away in the face of so-called "open access." If I may interpret, Mike's point is that scholarship, and particularly legal scholarship, is a self-contained, self-validating, self-referential economy, in which the payoff is in utils measured by prestige. And open access simply does not generate sufficient wealth as so measured. According to Mike, "The theory of the economy of prestige holds that we see a grumpily mutually-reinforcing symbolic economy of law professors, lawyers, law students, law schools and their universities processing professional prestige through the unusual institution known as the law review."

It's a dreary prospect, and not one that inspires joy. But there's some joy after the fold.

Consider the conundrum. Mike points out one criticism of law reviews is that they are edited by law students, and because the law students really don't know what they are doing, much of what appears is garbage (by the way, I should note that the garbage Mike skewers sounds a lot like what I do!). But the garbage is submitted by law professors, who presumably would be the peer reviewers if the system were replaced by peer review. All of which means that there must be some elite within the discipline that is the ultimate judge of quality. But how did they get to be the judges? Is there an immanent Truth to which they have access? This is all very tough stuff. (I may have this slightly wrong, but I am recalling the description of the process by which the early American Puritan Congregationalists were admitted to whatever it was that they were admitted to - as deacons, members, saints, whatever. Once the church leadership was in place, those individuals could decide who else got in. But how did the first ones establish their credentials? Apparently two elders would get in a room and battle it out mano-a-mano and then certify each other. In Mike's piece, the analogous process has to do with the founding of the Harvard Law Review.) Anyway, that's scholarship.

Going to back to Tikkun Olam, I can see how there are many aspects of repairing the world that would cause one to get really mad. There are so many injustices and, not to be flip about it, so little time. (Even I, the most congenial and laid-back of people, got my heart pumping when I listened to a couple colleagues tell me the other day they liked what John Edwards had to say about "corporate greed.")

But one of the curiosities to me of the academic life is how it is possible to get so angry about almost anything. I have in mind the feud between two philosophers highlighted today in the New York Times, and about which Brian Leiter has provided some insight. I think I can actually explain the substantive dispute. One of the knottiest issues in philosophy of mind is the question of consciousness itself. What does it mean to experience the world, not in terms of explaining the physical aspects of the experience, but actually, from a first person standpoint, having the experience? (This is the subject of David Chalmers' book, The Conscious Mind, highlighted by Larry Solum in his Legal Theory Bookworm on the same day Larry expounded on his own application of the "zombie" hypothetical to the issue of legal personhood at the AALS meeting.) There are two poles to the debate, one at the physicalist, or naturalist, end, contending (or believing) that consciousness cannot ultimately be something separate from physical cause-and-effect, and the other at the "spiritualist" end, contending that consciousness will never be explainable from a purely physical or natural standpoint. ("Dualism" tends to move to the latter pole because it views consciousness as something apart from the physical, even if consciousness is not spiritual. This is where Chalmers comes out.)

The feud is about a book written by the philosopher, Ted Honderich, in which he proposes something along the lines of a physicalist thesis (called Radical Externalism). Colin McGinn, another philosopher, wrote a scathing review of the book in Philosophical Review. Brian Leiter highlighted the issue not as much for the merits of the philosophical argument, but for what constituted the bounds of appropriate vitriol in a book review. If you are interested, I recommend Brian's links to the various original pieces, as well as the extensive commentary on the issue over at Leiter Reports.

I can only think this dispute hit the Guardian and the New York Times because nobody outside of The Academy could fathom that much anger over the issue I just characterized, and so there must be something more to the plot. Indeed, the principals argue about that as well. That, it seems, is the unfortunate aspect of the whole dispute, reinforcing as it does what must be a schadenfreude-filled view from the outside of the joylessness inside The Academy. I personally, being new to The Academy, and despite hearing rumors to the effect that this goes on, and despite now having been to several faculty meetings, have never actually had the conscious experience of what follows, so, again, I rely on Jack Getman's description: "Powerful feelings were evoked by the most technical or trivial of issues. When we considered a minor change in the exam schedule, the debate was barely civil. . . . Debate at faculty meetings often resembles one-on-one schoolyard basketball more than it does serious academic discussion."

I confess to as much fear of failure as the next person (I still tend to the math exam stress dream, but see Liz Glazer and Bruce Boyden for more on this), and it's not helping that what I really want to write and think about next is the relationship between consciousness and our sense of justice (working title: "Justice is Like Greenness: Reflections on the Rule of Law"). I come to the conclusion that one has to work at provoking one's sense of joy as much as one spends cataloging the miseries. I have these moments of what Abraham Joshua Heschel called "radical amazement" that push me to the non-reductive side of the consciousness debate, and I want to talk about them, but I can't imagine getting mad about it (unless, I suppose, somebody writes a review of what I say and calls me a worthless idiot). The moments happen in teaching, as when a student's light goes on, or in collegiality, as when I had wonderful conversations with people on my faculty I didn't know before (like Steve Eisenstat and Marie Ashe), or in "scholarship" when all the sudden a piece falls into place, or in simple effect on the world, as when somebody at AALS told me that he used one of my short essays as the basis for a take-home exam in advanced contract theory.

Mike Madison observes that physicists seem to have come to terms with both open-access and traditional publication, theorizing that they have less vested in the utils of the self-contained economy of prestige, because they are in pursuit of the Grand Theory of Everything. If it's even possible that the rest of us are collectively chasing our tails, rehashing the same debates endlessly, then as I've said, paraphrasing Robert Louis Stevenson, it really is better to travel hopefully than to arrive.

Posted by Jeffrey_Lipshaw at 12:20 PM | Comments (2) | TrackBack

What Was Old is New - Narrative and Social Science in Law, History, and . . . Mergers and Acquisitions?

Dave Hoffman's very interesting post below on the future of corporate law scholarship - as to which I posted a comment about "narrative" - got me to thinking about the reality of what goes on in a very complex corporate life, and academic attempts to distill that reality into meaningful scholarship. What follows incorporates some thoughts and text from a blog post I put up on Legal Profession Blog several months ago.

First, a disclaimer. I'm still sorting my way through the concept of narrative (see Cover's seminal Nomos and Narrative), and I have been bugging my office next door neighbor, Jessica Silbey, about it as well. Narrative, as I understand it, at least in the context of legal studies, works from the viewpoint of the participants in (of victims of) the legal process. It stands as a contrast to third-party theorization, and has been a central feature of critical studies, because it gives voice to those historically under-represented - minorities, the poor, the uneducated, etc. But narrative is not exclusively the province of critical legal studies. Jessica's most recent piece, The Mythical Beginnings of Intellectual Property Law (George Mason Law Review) uses narrative as an alternative approach to intellectual property law. Jessica's ambitious thesis is that utilitarian (read: economic) theories of intellectual property law do not fully account for its importance. She posits a narrative significance to creativity, supported by intellectual property rights, as a form of the "origin myths" or "origin stories" (I think of Horatio Alger, or George Washington and the cherry tree, or Abraham smashing the idols) that serve as models for human behavior and give meaning to our lives.

Second, a context. Yesterday, the New York Times picked up again on the Cerberus-URI decision, linking it to speculation that targets in acquisitions will seek stronger contractual protection against deals falling through because of diminished force of reputational impact on an acquiror who backs out. What struck me again, as it did when I commented originally, was how hard it is for a participant in a deal negotiation that stretches over several weeks or months to reconstruct all of the ebbs, flows, ups, downs, inserts, deletions, morphs, retrenchments, amendments, flare-ups, deal-breakers, and compromises that invariably occur. It was no surprise to me that the lawyer for URI, on cross-examination, threw up his arms and testified that "anything is possible."

So the question to me is the relationship between the kind of scholarly theorization Dave catalogued and the relevance (or impact) of that theorization to (or on) the corporate actors. I still recall the graduate student instructor (my long time friend and current University of Houston history and social work professor Andy Achenbaum) in the first session of the small section of my first U.S. history course describing the paper requirements, and telling us that we should think of them as "legal briefs." As I had no idea what a good history paper nor a good legal brief looked like, it was not, at the time, particularly helpful advice. But I know now that all scholarship, implicitly or explicitly, makes an argument linking data through some structure or process of theorization.

The hot topic back then (mid-1970s) was the call to import social science methodology into historical analysis, as a (or the) way of making that argument. Another of my professors, Robert F. Berkhofer, Jr., had then recently written a book entitled A Behavioral Approach to Historical Analysis, a call to employ historiographical methods that pierced through the possibility of myth-making by understanding the roles of actors and interpreters in the writing of history. It was a reaction to the interpretive or narrative nature of the study of history, which had no doubt as much to do with the time and place of the narrator as it did of the actors. (The example I recall most vividly was that Arthur Schlesinger's The Age of Jackson seemed to import a fair amount of the The Age of Roosevelt, reflecting as much the author as the subject.) That is, to what extent were historians writing history, versus writing the Great Stories?

I was separately, and for my own purposes, trying to construct what had happened to Berkhofer's thesis about social science methods in history. I came upon a review, authored by Thomas Haskell at Rice, of Berkhofer's 1995 book, Beyond the Great Story: History as Text and Discourse. (The review is "Farewell to Fallibilism: Robert Berkhofer's Beyond the Great Story and the Allure of Post-Modernism," 3 History and Theory 347 (1998)). Now, I have not read the book, only the review, but it serves my point here just as well. The review was devastating, but, despite my fond memories of my time with Professor Berkhofer, I have to admit I was sympathetic to its point, which was essentially this: there's nothing like the reaction of the disappointed absolutist (read: Berkhofer the behavioral theorist) who despairs of his theory, and proceeds from rigorous causal explanation to a rejection of all theory with no stop in between for the possibility that life (read: history) is too complex either for algorithmic solution or complete deconstruction.

It seems to me that the same unresolved (and if Haskell is to be believed - and I think he is - unresolvable) issues of historiography, the perseverance of the old antinomies like explanation and understanding, of empiricism and intuition, prevail in the legal briefs we want to write as legal academics. This paragraph of Haskell's review of Berkhofer stopped me in my tracks:

The lamentable inadequacy of the so-called "modernist paradigm" turns out to be that it will not reduce to an algorithm. On [Berkhofer's] account, the normal paradigm makes of historical inquiry a fallible project,