Legal Theory Blog

Legal Theory Lexicon: Restraint and Constraint in Constitutional Theory

Introduction

The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory.  One aspect of this idea connects with the notions of "judicial activism" and "strict construction" that are discussed in a previous Legal Theory Lexicon entry.  Another aspect of this discourse concerns the ideas of judicial restraint and constraint.

One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous.  Is restraint simply inaction?  Or does constraint have to do with the idea that courts should be bound by the constitution?  These two notions are not the same.  The constitution might require action that interferes with the political branches, but it might require inaction as well.

Thomas Colby has made a metalinguistic proposal to sort out the potential confusion.  Here is the way he put the suggestion:

(“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint--in the sense of deference to legislative majorities--it continues to a substantial degree to emphasize judicial constraint--in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).

Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).  Colby's idea is that we can stipulate that "restraint" refers to deference and that "constraint" refers to the a requirement of consistency with the constitutional text.

The remainder of this Lexicon entry develops Colby's proposal.

The Restraint-Constraint Distinction

Let's begin with stipulated definitions of "restraint" and "constraint."  We can stipulate as follows:

• Restraint: A judicial decision is stipulated to be “restrained” if and only if the decision defers to decisions made by executive officials or statutes enacted by a legislative body.  Example: Refusing to strike down a statute would be an instance of restraint.
• Constraint: Constitutional practice (by judges or other officials) is stipulated to be “constrained” if and only if the actions taken by officials are consistent with the communicative content of the constitutional text.  Example: Striking down a statute because it violates the original meaning of the First Amendment would be an instance of constraint.

Notice that only judicial decisions can be restrained in the stipulated sense, but that the actions of any official can be constrained by a requirement of consistency with the communicative content of the constitutional text. We can represent the possible interactions between constraint and restraint via the following table:

 

The stipulated version of the restraint-constraint distinction allows us to disentangle some of the confusions in discourse about the proper role of the courts.  Critics of the Warren Court were especially concerned about cases that they saw as properly classified in the lower-right quadrant of the two-by-two matrix.  For example, some critics of the Warren Court may have believed that the Court's privacy decisions (e.g., Griswold v. Connecticut) were cases in which the had acted in a way that was both unrestrained (interfering with an action by the state legislature) and unconstrained (not based on the constitutional text).  But what about actions that fall in the lower left quadrant--cases in which the Court upholds legislation but in a way that is inconsistent with constitutional text?  For example, some constitutional lawyers believe that many of the New Deal cases should be classified as restrained but unconstrained.  The decision in Wickard v. Filburn might be an example: the Court deferred to Congress but acted in a way that is inconsistent with the constitutional text--by assumption for the purposes of the example.  On such cases, critics of the Court may split, with some agreeing that  these New Deal cases are praiseworthy because they illustrate judicial restraint, but others complaining that these decisions are contrary to the text and hence unconstrained.

Connection with Judicial Activism

The  restraint-constraint distinction enables us to understand why "judicial activism" became an ambiguous concept.  "Activism" became a contrast word for both restraint and constraint and sometimes for just a lack of restraint or just a lack of constraint.  When applied to cases in the lower right quadrant of the matrix (unrestrained and unconstrained), everyone could agree that the label "judicial activism" properly applies, but when the case fell into either the upper right quadrant (unrestrained but constrained) or the lower-left quadrant (restrained but unconstrained), the ambiguity in the meaning of "judicial activism" is revealed.

This leads to a proposal for the disambiguation of "judicial activism": we can reserve this term for decisions that unrestrained and hence are in the left-hand column of the two-by-two matrix.  This would end confusion about the meaning of "judicial activism" and hence improve the quality of discourse about constitutional theory.

Stipulation versus Metalinguistic Negotiation

So far, I have been suggesting the constitutional theorists stipulate the meaning of "judicial restraint" and "judicial constraint" along the lines suggested by Colby.  So long as the stipulations are clearly presented and understood, that should be sufficient to reduce the level of confusion in academic writing about constitutional theory.  But we can go one step further and engage in what philosophers of language have called "metalinguistic negotiation."  That is, we can try to change the way that the words are used so that the stipulated definitions become the accepted meanings.

Engaging in explicit metalinguistic negotiation requires that we present reasons for our metalinguistic proposal.  Why should we use the phrases "judicial restraint" and "judicial constraint" in the way that Colby proposed (and I endorse)?  That is, we need to advance arguments of conceptual and linguistic ethics--arguments about what concepts we should employ and what words we should use to represent those concepts.  The conceptual advantages of the restraint-constraint distinction have already been explored: the distinction makes debates in constitutional theory clearer and more precise.  And I think there are linguistic advantages as well.  The ordinary meaning of "constraint" is well adapted to the role that word plays in the concept of judicial constraint that Colby proposes.  The ordinary meaning of "restraint" serves well to express the deference-related concept of judicial restraint.

Conclusion

As always, this entry in the Legal Theory Lexicon is addressed to students (and especially first-year law students) who are interested in legal theory.  There are many further complications that take off from this introduction, including conceptual issues about the precise definitions and possible variations of restraint and constraint and theoretical issues about the very idea of metalinguistic negotiation.  But I hope that this simplified introduction is sufficient to enable readers to think further about these issues.

One final point.  Constitutional theory is a highly impacted field of discourse.  Saying something genuinely new is rare; saying something that is both new and useful is even rarer.  I do not know for sure that Thomas Colby was the first to use the restraint-constraint distinction, but I think he was.  We all owe him thanks.

Related Lexicon Entries

• Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Legal Theory Lexicon 071: The New Originalism

Bibliography

• Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).
• David Plunkett and Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in Pragmatism, Law, and Language 56-75. (G. Hubb and D. Lind eds. 2014).

 

(Last revised, August  16, 2020)

Legal Theory Bookworm: "The Cambridge Companion to the Philosophy of Law," edited by Tasioulas

The Legal Theory Bookworm recommends The Cambridge Companion to the Philosophy of Law, edited by John Tasioulas.  Here is a description:

What is the nature of law as a form of social order? What bearing do values like justice, human rights, and the rule of law have on law? Which values should law serve, and what limits must it respect in serving them? Are we always morally bound to obey the law? What are the philosophical problems that arise in specific areas of law, from criminal and tort law to contract law and public international law? The book provides an accessible, comprehensive, and high quality introduction to the major themes of legal philosophy written by a stellar international cast of contributors, including John Finnis, Martha Nussbaum, Fred Schauer, Onora O'Neill and Antony Duff. The volume is an exceptional teaching tool that provides a critical introduction to cutting-edge work in the philosophy of law.

Download of the Week: "Uncommon Law" by Galperin & Kysar

The Download of the Week is Uncommon Law: Judging in the Anthropocene by Joshua Galperin  & Douglas A. Kysar.  Here is the abstract:

The origin story of environmental law begins with judges working valiantly to protect the environment, but ultimately, out of an apparent necessity, passing responsibility to legislators and regulators. There is truth to the story, but it ignores important aspects of the demonstrated expertise, creativity, and dynamism of common law judges. Given the trajectory of the environmental law narrative, judges today too anxiously defer to legislative and regulatory policy, and we have come to expect, sometimes champion, this shirking of environmental responsibility. But this logic of deference is unpersuasive in an age where legislators and regulators also struggle, and most often fail, to address environmental issues like climate change. This chapter urges that, instead of minimizing the role of judges, there is immense need to rediscover the possibilities of common law environmental protection. There is need to write a new origin story in which courts, legislators, and regulators carry shared responsibility. The threat of climate change demands a turn to courts for a variety of services, not least, adjudication that uncovers individual suffering and declaration of norms of right and responsibility. The judge’s role in candidly attending to these meaningful decisions can be the catalyst for much needed political action.

Campos on Evidentiary Prior Restraints

Sergio J. Campos (University of Miami School of Law) has posted Confidentiality in the Courts: Privacy Protection or Prior Restraint? on SSRN.  Here is the abstract:

In civil litigation courts often deal with information that is subject to a previously imposed restraint on the ability of a court or others to use the information. Such “evidentiary prior restraints” arise most prominently in settlement agreements, which may include nondisclosure provisions that prevent information concerning the settlement from being used by parties to the agreement. But evidentiary prior restraints can also arise from prior court action, as when parties seek information subject to a protective order or sealing order made by a different court. Although evidentiary prior restraints have received great attention given recent controversies concerning sexual harassment, products liability, and other areas of the law, the issue has not received much attention from scholars.

This essay examines the effects of evidentiary restraints on the enforcement function of civil litigation. In general, the essay concludes that privacy interests alone do not justify the enforcement of litigation restraints because these privacy interests can, and often do, prevent courts from accurately assessing the liability of the parties. Moreover, such restraints prevent market pressure from regulating the conduct of market participants, leading to more harm. Nevertheless, the essay does discuss situations when the protection of privacy interests may aid, rather than hinder, enforcement objectives. Accordingly, the essay concludes that more empirical research should be done to guide courts in determining when evidentiary prior restraints should not be enforced.

deGuzman on the Concept of Gravity and International Criminal Law

Margaret M. deGuzman (Temple University - James E. Beasley School of Law) has posted Preface and Introduction to SHOCKING THE CONSCIENCE OF HUMANITY: GRAVITY AND THE LEGITIMACY OF INTERNATIONAL CRIMINAL LAW (Oxford University Press 2020) on SSRN.  Here is the abstract:

The most commonly cited justification for international criminal law is that it addresses crimes of such gravity that they “shock the conscience of humanity.” From decisions about how to define crimes and when to exercise jurisdiction, to limitations on defences and sentencing determinations, gravity rhetoric permeates the discourse of international criminal law. Yet the concept of gravity remains highly undertheorized. This book uncovers the consequences for the regime’s legitimacy of its heavy reliance on this poorly understood idea. It argues that gravity’s ambiguity may at times enable a thin consensus to emerge around decisions, such as the creation of an institution or the definition of a crime, but that, increasingly, it undermines efforts to build a strong and resilient global justice community. The book suggests ways to reconceptualize gravity in line with global values and goals to better support the long-term legitimacy of international criminal law.

The book's introduction sets forth its central arguments that: (1) the international criminal law regime relies heavily on the concept of gravity to justify its existence and many of its decisions; (2) the concept is undertheorized and ambiguous; (3) the regime’s reliance on the concept undermines its legitimacy; (4) gravity should be reconceptualized as a function of the regime’s values and goals; and (5) the regime’s focus should be on global community values and goals, rather than on those of the national communities most directly affected by the crimes it addresses.

Here is a link to the book: Shocking the Conscience of Humanity.

Alexander on the Rule of Recognition & Intentionalist Interpretation

Larry Alexander (University of San Diego School of Law) has posted Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay (52 Conn. L. Rev. (forthcoming 2020)) on SSRN.  Here is the abstract:

This article, written in honor of Rick Kay and his distinguished career, addresses two areas of mutual interest: the foundations of legal systems and legal interpretation as a quest for lawmakers’ intended meanings. I attempt to show how these two topics are connected.

Highly recommended.

Blackman on Presidential Subpoenas during the Burr Trials

Josh Blackman (South Texas College of Law Houston) has posted Presidential Subpoenas during the Burr Trials on SSRN.  Here is the abstract:

Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall’s narrow construction of the crimes of treason, the jury acquitted Burr of both the felony and the misdemeanor charges. Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson’s letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.

As the deliberations proceeded, Hay would frequently write to the President, who traveled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government’s positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redaction. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.

Because of the lengthy nature of the proceedings — in which Marshall and Jefferson took different positions at different junctures — it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.

Highly recommended.

Galperin & Kysar on Common Law Environmental Protection

Joshua Galperin (University of Pittsburgh - School of Law) & Douglas A. Kysar (Yale University - Law School) have posted Uncommon Law: Judging in the Anthropocene (Jolene Lin & Douglas A. Kysar (eds.), CLIMATE CHANGE LITIGATION IN THE ASIA PACIFIC (Cambridge University Press 2020)) on SSRN.  Here is the abstract:

The origin story of environmental law begins with judges working valiantly to protect the environment, but ultimately, out of an apparent necessity, passing responsibility to legislators and regulators. There is truth to the story, but it ignores important aspects of the demonstrated expertise, creativity, and dynamism of common law judges. Given the trajectory of the environmental law narrative, judges today too anxiously defer to legislative and regulatory policy, and we have come to expect, sometimes champion, this shirking of environmental responsibility. But this logic of deference is unpersuasive in an age where legislators and regulators also struggle, and most often fail, to address environmental issues like climate change. This chapter urges that, instead of minimizing the role of judges, there is immense need to rediscover the possibilities of common law environmental protection. There is need to write a new origin story in which courts, legislators, and regulators carry shared responsibility. The threat of climate change demands a turn to courts for a variety of services, not least, adjudication that uncovers individual suffering and declaration of norms of right and responsibility. The judge’s role in candidly attending to these meaningful decisions can be the catalyst for much needed political action.

Recommended.

Mimran on the Caliphate of the Islamic State & the Westphalian Legal Order

Tal Mimran (Hebrew University of Jerusalem - Faculty of Law) posted In A Broken Dream: Lessons from The Rise and Demise of the Self-Declared Caliphate of the Islamic State in Syria and Iraq (Journal of Transnational Law & Policy, Vol. 29, 2019-2020) on SSRN.  Here is the abstract:

This article discusses the challenge presented by the Islamic State (Daesh) to the international Westphalian legal order. It suggests that the failure to establish a Caliphate highlights the resilience of the international legal order, and that a socio-political unit cannot find its place in the international plane while ignoring international law, infringing on it, or opting out of it. This, in turn, reaffirms the growing tendency to give preference to legality over effectiveness in the discourse on Statehood.

Wherry on Discharge Upgrades & Post-Traumatic Stress Disorder

Jessica L. Wherry (Georgetown Law) has posted (Not the) Same Old Story: Invisible Reasons for Rejecting Invisible Wounds (17 Legal Communication & Rhetoric)  on SSRN.  Here is the abstract:

Thousands of former military service-members have been discharged with other-than-honorable discharges due to misconduct that can be traced to a mental health condition. These veterans may request a post-discharge change to their discharge characterization — known as a “discharge upgrade.” Discharge review boards consider discharge upgrade requests and typically (90-99% of the time) deny the requests. In the past few years, the Department of Defense has issued new policy guidance partly in response to the low grant rate and to specifically address the growing understanding of the relationship between misconduct and mental health conditions for military service-members. The policy guidance requires the boards to give “liberal consideration” to veterans seeking relief for matters relating to “invisible wounds,” such as post-traumatic stress disorder.

Liberal consideration mandates a relaxed view of misconduct in connection to mental health conditions, with the overall goal of granting relief to those who deserved it. Despite the significant shift in policy, there has been very little change in the rate of discharge upgrades granted. This essay seeks to explore why liberal consideration has not had its intended effect. Rather than take on a comprehensive evaluation of the liberal consideration policy, this essay intentionally narrows in on one possible explanation for why liberal consideration has not been fully implemented. In exploring this implementation gap, the essay looks to storytelling and rhetorical principles to consider a possible explanation for the boards’ failure to embrace liberal consideration. The essay applies a narrow slice of storytelling scholarship — how humans respond to stories — to the specific context of discharge review board decisions.

Tsiokanou, May, & Daly on Migration & Dignity

Glykeria Tsiokanou, James R. May (Widener University Delaware Law School), & Erin Daly (Widener University Delaware Law School) has posted Migration with Dignity on SSRN.  Here is the abstract:

Migration involves moving from a country of origin to another country in pursuit of a better life, and is a growing global phenomenon. The UN International Organization for Migration estimates that nearly a quarter of a billion people migrated in 2018 alone, nearly three-quarters of whom are workers, one-half of whom are women, and nearly one in nine of whom are children. Migration comes with a host of dangers, challenges and risks, beginning with systemic corruption of government authorities and officials; trusting third parties facilitators, and modes of transport; guarding oneself, friends and loved ones from abuse and criminal behavior along the journey; and, avoiding mistreatment at the point of entry and exploitation afterward.

Reflecting human dignity’s role in the rule of law can help. Human dignity recognizes the equal worth of each person without regard to gender, race, wealth, political status or any other societal signifier. Dignity is inherent, immutable, inalienable and universal. Human dignity encapsulates the notion that every person has equal worth. Dignity is recognized in myriad international and regional treaties, thus garmenting international human rights law with common dignity rights thread. It is also guaranteed by the constitutions of 160 nations.

This report examines how human dignity under law affects various aspects of migration, including the right to equality and non-discrimination, freedom of movement, the right to personal safety and security, the right to live with dignity and well-being, access to services, and civil and political rights. As we shall see, migration with dignity is an idea whose time has come.

Adams on Recidivist Sentencing & the Sixth Amendment

Benjamin Adams (Indiana University Bloomington, Maurer School of Law) has posted Recidivist Sentencing and the Sixth Amendment (Indiana Journal of Law & Social Equality, Volume 327, Issue 8, 2020) on SSRN.  Here is the abstract:

Using New York's persistent felony offender statute as a case study, this paper explores the relationship between the U.S. Supreme Court's Sixth Amendment jurisprudence and state recidivist sentencing schemes.

Enman-Beech on the Contractualization of Work

John Enman-Beech (University of Toronto, Faculty of Law) has posted Two Contractual Futures of Work (2020 Centre for Ethics Journal 55) on SSRN.  Here is the abstract:

Contractual choice offers one vision of autonomy for workers. But contractual choice is a narrow and manipulable conception of choice. Contractual choices often conflict with other kinds of choice, such as democratic choices and life choices. This commentary responds to the Future of Work in the Age of Automation and AI Symposium by drawing out the promise and perils of the continuing contractualization of work. This contractualization is newly catalyzed by gig economy platforms, preference-manipulating gamification and AI-powered surveillance and management techniques. Digital piece work is dissolving toward tailored tasks, contractually regulated down to each moment of human life. As these trends continue, will workers be able to exercise robust contractual choice over their legal relationships, to achieve a welfare-enhancing form of autonomy? Or will they tap "I agree" with a fatigued, fated acquiescence that is then taken as legal and moral sanction for whatever ensues?

Lipman, Mirkay, & Strand on Racist Tax Restructuring

Francine J. Lipman (University of Nevada, Las Vegas - William S. Boyd School of Law), Nicholas A. Mirkay (William S. Richardson School of Law, University of Hawaii), & Palma Joy Strand (Creighton University Graduate School, Department of Interdisciplinary Studies) have posted U.S. Tax Systems Need Anti-Racist Restructuring (168 Tax Notes Fed/State 855 (Aug. 3, 2020)) on SSRN.  Here is the abstract:

#BlackTaxpayersMatter

The world has witnessed the brutal suffocation of George Floyd on a concrete sidewalk in Minneapolis. While this is but one more example of centuries of relentless violence against Black people, many are hoping that this tragic death might be a catalyst for meaningful change. Around the world, rallies, marches, and vigils have filled public spaces to call out institutional racism and demand systemic change. The rage, despair, exhaustion, and frustration with targeted discrimination has not only permeated cities and streets, but racism is being condemned at kitchen tables, by businesses, in social media, and from groups as sweeping as Sesame Street, KPop fans, and NASCAR. People across the globe are raising their voices and insisting that something be done to stop the routine ruin of Black lives.

Many are looking to Black leaders in every discipline, including finance, economics, and tax, and asking what they can do to help. And Black leaders — once again, after centuries of explaining, exposing, discussing, writing, speaking, preaching, demanding, and demonstrating that American institutions are implicitly and explicitly discriminatory and must fundamentally change — are providing thoughtful, cogent answers. They rise to the challenge again and again, hoping that this horrific racist episode will be different from countless previous episodes. They call for a transcendent time of tangible change. However, they are rightfully saying that this is not their burden to bear, and that those with the privileged status of race, income, wealth, and platforms must step up, move forward, and finally do something. We have heard from many of our Black and brown colleagues that they are “sick and tired of being sick and tired.”

As writers, we understand the power of words. But it is also true that actions speak louder than words. As Maya Angelou said so poetically, “When someone shows you who they are, believe them the first time.” (Emphasis added.) What can we as tax professionals, scholars, and advocates do to show our commitment to racial justice?

First, we must recognize that tax injustice is economic injustice, which leads directly to income and wealth inequality; pervasive poverty; and the compromised health, welfare, and safety of communities of color. The immorally high and persistent 32 percent rate of poverty for Black children and the 380 percent higher death rate of Black individuals from COVID-19 as compared with their white counterparts are real-world problems that can be remedied. However, real remedies will require all hands on deck, because these issues are long-standing systemic harms created and perpetuated by federal, state, and local institutions over the last 400 years.

This article will help you think more critically about these issues. It discusses the racist history of U.S. tax systems, prescribes anti-racist action items, and provides a wealth of referenced readable resources.

Giuliani on "Law and Revolution" by Berman

Adolfo Giuliani (Max-Planck-Institut für europäische Rechtsgeschichte) has posted The Western Legal Tradition and Soviet Russia. The Genesis of H. Berman’s Law and Revolution (V. Erkkilä and H.-P. Haferkamp (eds.), The Socialist Interpretations of Legal History. The Histories and Historians of Law and Justice in the Socialist Regimes of East Central Europe (Routledge)) on SSRN.  Here is the abstract:

The Western Legal Tradition (WLT) grows from the Cold War era. It had been originally conceived by the Harvard legal historian HJ Berman in his 1950 book on Justice in Russia, a work aimed at explaining to the West what laid beyond the Iron Curtain. It presents an account set out in opposition in which the West and Soviet Russia were defined in turn with the features missing to each other. In those pages is the blueprint for his two well-known volumes published in 1983 and 2003, and for a third volume left unfinished.

The WLT grows from another legacy from the Cold War era: human rights history. While this theme entered public debate fuelled by the concern with human rights in the Eastern European countries during the Cold War era, this paper shows how the WLT absorbed this theme hijacking a core component of continental legal science (subjectives Recht) re-engineered by political theorists into the major identitary element of the WLT in an eternity history rooted in medieval canon law. 

Here is a link to Berman's classic book. 

Hicks on the Australian National COVID-19 Commission Advisory Board

Elizabeth Hicks (University of Melbourne - Melbourne Law School; Humboldt University of Berlin - Faculty of Law) has posted Private Actors & Crisis: Scrutinising the National COVID-19 Commission Advisory Board (Governing During Crises (Melbourne School of Government), 2020) on SSRN.  Here is the abstract:

The COVID-19 pandemic has been accompanied by an expansion of executive power in many states.

Executive expansion may produce additional challenges for democracies when it collides with longer-standing problems of regulatory capture and clientelism: the tendency of regulatory agencies – or governments – to become dominated by the interests of a particular industry or group of private actors.

In this regard, the National COVID-19 Commission Advisory Board (NCC) warrants scrutiny. The NCC presents a case study of the particular risks that executive power allied with vested interests poses during times of crisis. This brief provides an overview of the NCC as well as specific problems entailed by its appointment process, composition, lack of transparency and lack of legislative underpinning.

Shannon & Hunter on "Sex" in Title VII

John H. Shannon and Richard J. Hunter, Jr (Seton Hall University and Seton Hall University) have posted The Civil Rights Act of 1964: Beyond Race to Employment Discrimination Based on Sex: The 'Three Letter Word' That Has Continued to Vex Society and The United States Supreme Court (Journal of Social and Political Sciences, Vol.3 No.3 (2020)) on SSRN.  Here is the abstract:

This article is a comprehensive review of the Civil Rights Act of 1964, more specifically, Title VII, which outlawed discrimination based upon, “race, color, creed, national origin, and sex.” The article traces the legislative genesis of the Act, the function of the Equal Employment Opportunity Commission, and discusses some of the major cases decided by the United States Supreme Court and other federal courts that have defined both the reaches and limits of the legislation which initially focused on prohibiting discrimination based on “race.” The article then focuses on discrimination based on “sex” and highlights the role the United States Supreme Court has played in fleshing out the parameters of employment discrimination from the 1960s through the historic decision reached by the Court in June of 2020 in Bostock v. Clayton County, Georgia, relating to sexual orientation, transgender status, and sex stereotyping.

Akbar on Abolishing the Police

Amna Akbar (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted An Abolitionist Horizon for Police (Reform) (California Law Review, Vol. 108, No. 6, 2020) on SSRN.  Here is the abstract:

Since the Ferguson and Baltimore uprisings, legal scholarship has undergone a profound reckoning with police violence. The emerging structural account of police violence recognizes that it is routine and legal, takes many shapes, and targets people based on their race, class, and more. But legal scholarship remains fixated on investing in the police to recalibrate and relegitimate their social function, without sufficient attention paid to alternate frameworks for reform. The 2020 uprisings sparked by the police killing of George Floyd mobilized demands rooted in prison abolitionist organizing that provide another way forward. In contrast to conventional reform, defund and dismantle the police represent a practical and radical agenda aimed at eliminating prisons and police and building modes of collective care social provision—in which reform aimed at shrinking the footprint, power, and legitimacy of police is one essential strategy. Strategies to defund and dismantle take head on the violence, size, and power of policing as central to the problem of policing. They redress police violence by diminishing the scale and power of police, and delegitimizing their social function.

In this Article, I identify a growing disjuncture between the deepening recognition of the violence at the heart of policing, and the persistence of a reform agenda that advances investments in police. I argue that a structural critique of police violence demands that we take seriously an abolitionist horizon for reform projects. I turn to abolitionist organizing, its historical, material, and ideological critiques of prisons and police, its campaigns to divest, dismantle, and delegitimate the police, and its experiments in collective care. I unpack the implications of an abolitionist approach and identify paths forward for legal scholarship.

Kugler & Oliver on Pandemic Surveillance & the Fourth Amendment

Matthew B. Kugler (Northwestern University - Pritzker School of Law) & Mariana Oliver (Northwestern University, Pritzker School of Law) have posted Constitutional Pandemic Surveillance on SSRN. Here is the abstracts:

How can government officials constitutionally use technologies like digital cell phone location tracking to contain the spread of a highly contagious pandemic? The Fourth Amendment case law on “special needs” searches shows that the answer depends on a reasonableness balancing analysis that considers, in part, the intrusiveness of the purposed surveillance methods and the degree of their connection to law enforcement activities. We analyze that case law and seek to inform the constitutional analysis by measuring the perceived intrusiveness of pandemic surveillance through two nationally representative surveys of Americans. Our results show that people find surveillance for public health to be more intrusive than surveillance for traditional law enforcement purposes. The strong privacy concerns expressed here must be weighed against the state’s interest in containing a pandemic. We therefore propose safeguards that we believe would make cell phone location tracking and other similar digital monitoring regimes constitutionally reasonable.Pand

Ryan on "Rationing the Constitution" by Coan

Erin Ryan (Florida State University, College of Law) has posted Rationing the Constitution vs. Negotiating It: Coan, Mud, and Crystals in the Context of Dual Sovereignty (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:

In RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME DECISION-MAKING, Professor Andrew Coan makes the provocative argument that judicial capacity is the most determinative factor in the Supreme Court’s constitutional interpretation, especially regarding such critical realms as equal protection, takings, and the separation of powers. He contends that the Court’s legitimate anxiety over managing workflow to the federal bench operates more powerfully to shape its responses to questions raised in these areas of law than any alternative theory of constitutional interpretation, including doctrinal models popular most among legal academics and strategic models more popular among political scientists.

Some readers will be more persuaded than others on different parts of Coan’s argument, but I was interested in the way that his theory of judicial capacity intersects with my own theory of negotiated governance within Balanced Federalism, which recognizes the interpretive value of bilaterally negotiated outcomes in federalism contexts where judicial capacity is low. Coan and I share the deep concern that the Court’s federalism jurisprudence sometimes misuses categorical rules in contexts where they are necessarily under- or over-inclusive, failing to account for critical nuances in complex cases, controversies, and policy dilemmas. His critique of how capacity constraints cause the Court to reach sub-optimal solutions in the federalism context provides theoretical support for my claim that federalism interpretation should be shared among all three branches, according to the distinctive capacity each brings to the interpretive enterprise.

This article assesses strengths and weaknesses in Coan’s book and explores the support his capacity theory provides for my own analysis of the role of interpretive intergovernmental bargaining in contexts of jurisdictional overlap. Part I provides an overview of Coan’s book, paying homage to the explanatory power of his model; the good advice he provides litigants advocating around capacity constraints; and the admonitions he offers about how the limits of judicial capacity should temper expectations about the role of the courts in a legal system within which courts are only one component. Part II considers the intersection between Coan’s work and mine on Negotiating Federalism, starting with our shared skepticism of the Court’s use of “bright-line” categorical rules in this arena and its implications for judicial competence. I argue that his analysis buttresses use of intergovernmental bargaining in certain federalism disputes.

Part III nods to some of the limits of Coan’s theory, suggesting that in his robust critique of categorical rules, he nevertheless applies one himself, conflating important differences between the bright-line categorical deference the Court applies in some contexts and the deferential but discretionary review it applies in others. It suggests that the capacity model is already accounted for within the predominant models of judicial interpretation from which Coan distinguishes it. Finally, it encourages Coan to think more seriously about a systemic remedy for the problem he identifies, in which limited judicial capacity leads to sub-optimal decision-making. It presses for clarification whether the solution is to alleviate capacity constraints by expanding the judiciary or reducing its demands by shifting power to the political branches.

Highly recommended.  Link to the book in the abstract.

Marcut on the EU Digital Single Market

Mirela Marcut (University of Oradea) has posted Building a Stronger Union – Governing the Digital Single Market (Artur Adamczyk, Małgorzata Dziembała, Agnieszka Kłos, Marta Pachocka, EU Facing Current Challenges, Opportunities, Crisis and Conflicts, Warsaw: Elipsa, 2019) on SSRN.  Here is the abstract:

The integration efforts of the European Union are still going strong, despite the overall conversation regarding the future of the EU. The Digital Single Market is one example of an integration effort, which aims to unify the digital markets of the Member States, to enable citizens to become digital citizens across the EU, by travelling freely with their data or content.

The main purpose of the article is to emphasize that the DSM requires a flexible governance mechanism. First, the article will analyse the main markers of the current EU governance. Based on this assessment, the paper will continue by explaining the current governance mechanism of the DSM in order to expose its benefi ts and its challenges. Finally, the paper aims to provide a series of governance proposals for the DSM, based on experimentalist governance theory.

Tommasini, Riccetto, & Roznai on Judicial Review of Constitutional Amendments & the Supreme Court of Brazil

Nicola Tommasini (Yale Law School), Pedro Riccetto (University of Oxford), & Yaniv Roznai (Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law) have posted When Backlashes & Overrides Do Not Scare: The Power to Review Constitutional Amendments and the Case of Brazil’s Supreme Court (International Journal of Human Rights and Constitutional Studies, 2020) on SSRN.  Here is the abstract:

This study deals with two of the most significant trends in global constitutionalism: the rising power of courts to review the ‘constitutionality’ of formal constitutional amendments, and political backlashes – as part of democratic erosion – aiming to curtail court’s authorities.

Focusing on Brazil’s Supreme Court as our case study and using rational choice theory, we demonstrate how the power to review constitutional amendments gears the Court toward a “sincere” approach to constitutional adjudication.

In other words, this judicial power allows the court to primarily decide cases according to its own policy preferences, rather than an “insincere” approach, searching for second-best solutions considering possible political overrides and backlashes.

Redish on Constitutional Remedies

Martin H. Redish (Northwestern University - Pritzker School of Law) has posted Constitutional Remedies as Constitutional Law on SSRN.  Here is the abstract:

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the provisions of the countermajoritarian Constitution. Absent judicial review, the fundamental speed bumps to tyranny which the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the remedies to be issued to enforce the judiciary’s interpretations of the Constitution are fully controlled by the very political branches which the Constitution is designed to restrain. Thus, all the political branches need do to avoid constitutional control is deny to the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet the respected constitutional scholars to have examined the issue of constitutional remedies seem not to have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope—indeed, the existences—of remedies to enforce constitutional dictates. Nor has the Supreme Court acknowledged the unique nature of constitutional remedies. Instead, the Court has incorrectly deemed implied constitutional and statutory remedies to be coterminous as a matter of judicial power, when the fundamental elements of American political theory make clear that the two are completely distinct.

In this Article, the author explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. He then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation.

Kadri on Digital Abuse, Code, & Norms (Link Fixed)

Thomas Kadri (University of Georgia School of Law) has posted Networks of Empathy (Utah Law Review, Vol. 2020 (2020)) on SSRN.  Here is the abstract:

Digital abuse is on the rise. People increasingly use technology to perpetrate and exacerbate abusive conduct like stalking and harassment, manipulating digital tools to control and harm their victims. By some accounts, 95% of domestic-abuse cases involve technology, while a sizeable chunk of the U.S. population now admits to having suffered or perpetrated serious abuse online. To make matters worse, people often trivialize digital abuse or underestimate its prevalence. Even among those who do appreciate its severity, there remains ample disagreement about how to address it.

Although law can be a powerful tool to regulate digital abuse, legal responses are by no means the only option. This Essay explores how both computer code and social norms can prevent and mitigate forms of digital abuse that aren’t easily addressed through law. These regulatory responses should be grounded in empathy for victims of digital abuse. Empathy demands imaginatively putting oneself in a victim’s place and attempting to feel as they feel—a trying task made easier by heeding victims’ stories. We can neither understand nor address digital abuse unless we view technology in a deeper social context and grapple with how and why digital abuse is harmful. This Essay urges key figures to exhibit greater empathy in developing code and norms to help victims, proposing ways that technologists, police officers, educators, employers, and victims can use these extralegal means to combat an increasingly pervasive form of abuse.

Highly recommended.

Shanahan, Mark, Steinberg, & Carpenter on COVID-19 & Inequality

Colleen F. Shanahan (Columbia University - Law School), Alyx Mark (Wesleyan University Dept. of Government; American Bar Foundation; North Central College Dept. of Political Science), Jessica Steinberg (George Washington University - Law School), & Anna E. Carpenter (The University of Utah S.J. Quinney College of Law) have posted COVID, Crisis and Courts (Texas Law Review Online, 2020) on SSRN.  Here is the abstract:

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of this crisis, one thing is certain: one part of our government grapples with the individual consequences of inequality and oppression day in and day out and it will continue to do so with even more urgency in the future: the state civil courts.

Even before the current crisis, as other branches of government have failed to address inequality, state civil courts have become the government actor of last resort for the tens of millions of Americans each year who suffer the consequences of these failures. Now, these same courts — for the first time in history — have quickly and nimbly changed the way they provide justice. Courts’ improvisation in the face of a global public health crisis present a permanent opportunity for social change. In contrast to burgeoning attention to state criminal courts, this role for state civil courts was hidden from those not directly involved and largely ignored by scholars. Now it is unavoidable. This essay lays out a framework for change that state civil courts should embrace as they reopen to the tidal wave of litigants.

Bodie & McMahon on Employee Testing & COVID-19

Matthew T. Bodie and Michael McMahon (Saint Louis University School of Law and Saint Louis University, School of Law, Students) have posted Employee Testing, Tracing, and Disclosure as a Response to the Coronavirus Pandemicon on SSRN.  Here is the abstract:

As the COVID-19 pandemic continues to devastate the United States, the federal government has largely failed to implement a national program to prevent and contain the virus. As a result, many employers have undertaken their own workplace coronavirus mitigation efforts. This essay examines, in three parts, the legal framework surrounding employer systems of workplace testing, tracing, and disclosure. It first examines the legal issues surrounding employer-mandated COVID-19 testing and temperature checks, especially issues arising under the Americans with Disabilities Act (ADA) and Health Information Portability and Accountability Act (HIPAA). Regarding employer contact tracing efforts, the essay next reviews the multitude of new digital tools and applications designed to aid in contact tracing and how these may implicate various state and federal privacy laws. Finally, the essay looks into employer disclosure of employee infections, including legal ramifications under the ADA, HIPAA, and other privacy laws. Our conclusion: employer testing, tracing, and disclosure programs are legally feasible but require careful planning and execution to protect employee privacy interests.

Shammas & Pressman on the Constitutionality of Zoom Jury Trials

Michael Shammas (New York University School of Law) & Michael Pressman (New York University School of Law) have posted Advocacy through the Computer Screen: The Permissibility & Constitutionality of Jury Trial by Video Conference on SSRN.  Here is the abstract:

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?

While due process concerns may render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, the right to a civil jury trial by Zoom may be not only permissible but necessary in order to actualize the Seventh Amendment's protections, especially if the Covid-19 pandemic continues longer than expected. If courts eventually allow digital jury trials, certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.

Interesting.

Redish, Roosevelt, & Rodheim on Purposivist Statutory Construction & Federal Jurisdiction

Martin H. Redish (Northwestern University - Pritzker School of Law), Nick Roosevelt (Northwestern University - Northwestern Pritzker School of Law), & Andrew Rodheim (Northwestern University - Northwestern Pritzker School of Law) have posted Federal Jurisdiction as Statutory Interpretation: A Majordomo Purposivist Perspective on SSRN.  Here is the abstract:

The study of federal jurisdiction has traditionally involved little more than a combined examination of judicial doctrine and policy. Under this approach, scholars study how the Supreme Court has decided to shape the jurisdiction of the federal courts, and the policies the Court believes jurisdictional doctrine should reflect. Hardly ever have scholars studied the legislative purposes sought to be achieved by federal jurisdiction. It is important to recall, however, that for the most part modern federal jurisdiction law grows out of a network of congressional statutes—which, in turn, grow out of policy choices made not by unrepresentative judges, but by those politically accountable to the populace. It is also important to realize that since the federal courts enforce substantive federal law, often jurisdictional directives operate as the fundamental means by which to implement the substantive policy choices made by the political branches. It is for these reasons that we believe federal jurisdiction should be studied, in the first instance, not merely as a matter of doctrinal and policy analysis, but rather as a matter of statutory construction, as a means of implementing the goals chosen by those elected by the people. Such an approach, after all, reflects the nation’s foundational commitment to democracy. In this Article, we seek to achieve two goals: First, to explain how the Supreme Court’s general failure to view the shaping of federal jurisdiction as fundamentally a matter of statutory construction has dangerously distorted the central premises of American political theory, and second, to propose an original approach to the “faithful agent” model of statutory interpretation—what we call the “Majordomo Purposvist” approach. By comparing the role of an interpreting judge to that of a majordomo—traditionally, one in charge of a large estate owned by another—we seek both to confine and broaden the judge’s authority. We confine it, by underscoring the interpretive humility a judge must demonstrate in interpreting statutes enacted by a representative, accountable governing body. Yet we simultaneously broaden that authority by recognizing that, much like a real-life majordomo, the interpreting judge will often have a significant degree of implementational discretion in determining how best to achieve legislative goals in particular situations.

McGinnis & Sun on Unified DOJ Control Over Antitrust Enforcement

John O. McGinnis (Northwestern University - Pritzker School of Law) & Linda Sun have posted Unifying Antitrust Enforcement for the Digital Age on SSRN.  Here is the abstract:

As the digital revolution continues to transform competition among businesses, U.S. antitrust enforcement has struggled to remain effective. The U.S. has long depended on a system of dual antitrust enforcement through both the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Modern technology has greatly exacerbated existing structural deficiencies of the two-headed approach, at times resulting in deadlock. The two agencies approach new antitrust issues generated by computational technologies differently and fight over who should lead key investigations, leading to economic uncertainty in the most important business sectors. These enforcement disagreements can also hobble the government’s response to significant national security issues emerging from the interplay of technological competition among private companies and among nation states. Further, dual enforcement hinders government action in the newly critical area of data privacy: The agency responsible, the FTC, suffers a mission overload of enforcing both antitrust and privacy, which can work against each other.

The best solution is for the DOJ to become the sole antitrust enforcement agency. First, antitrust decisions, especially in the technology arena, directly affect geopolitical competition and international relations, a province constitutionally assigned to the President. It therefore makes more sense for the DOJ, which, unlike the FTC, is controlled by the President, to direct antitrust enforcement as one piece of a larger foreign policy. Second, consolidating enforcement in the DOJ would also allow the FTC to concentrate on enforcing privacy law, free from its sometimes-conflicting antitrust mandate. Dual enforcement of antitrust law should yield to single agency enforcement, with the FTC enforcing privacy and the DOJ enforcing antitrust.

Recommended.

Alexander on Risk & Moral Choice

Larry Alexander (University of San Diego School of Law) has posted What to Do in a World Full of Risks: Three Issues on SSRN.  Here is the abstract:

When we decide how to act, we realize that things may not work out as we expect. Certainties, for us, lie only in the past. In the future, they exist only for God. For us, the future results of our acts are matters of probabilities, the estimates we make based on the information we possess as we understand it. And, if we think about it, our estimates will always be wrong. The real “probabilities" will either be one or zero, depending on how things actually work out.

In this essay, I am going to discuss three moral problems that reflect this fact that the results of what we do are, from our perspective, matters of probability estimates until we actually act. One problem is that of preemptive action--action taken to avert some feared outcome. Another problem is that of how to take into account the probability that one’s act will violate a deontological constraint. And the third problem is to what extent one is obligated before taking a risky act to attempt to refine one’s estimate of the risk.

These three problems are independent of each other, so the preferred approach to one has no necessary implications for how to deal with the others. Nonetheless, dealing with all three in a single article is merited because they all deal with how probabilities should affect one’s choices, a topic that is far too neglected in moral philosophy.

Highly recommended.

Miotto on Coercion, Compliance, and the Efficacy of Legal Systems

Lucas Miotto (University of Maastricht) has posted The Good, The Bad, and The Puzzled: Coercion and Compliance (In: Jorge Fabra-Zamora and Gonzalo Villa Rosas, Conceptual Jurisprudence: Methodological Issues, Conceptual Tools, and New Approaches. Springer (Forthcoming 2021)) on SSRN.  Here is the abstract:

The assumption that coercion is largely responsible for our legal systems’ efficacy is a common one. I argue that this assumption is false. But I do so indirectly, by objecting to a thesis I call “(Compliance)”, which holds that most citizens comply with most legal mandates most of the time at least partly in virtue of being motivated by legal systems’ threats of sanctions and other unwelcome consequences. The relationship between (Compliance) and the efficacy of legal systems is explained in section 1. There I also show that (Compliance) must be rejected for it relies on unsubstantiated empirical assumptions. In section 2, I claim that an alternative, and more refined, formulation of (Compliance) also lacks adequate support. I conclude with a few general remarks about the centrality of coercion in our thought and talk about legal systems.

Interesting and recommended.

Legal Theory Lexicon: Persuasive Authority

Introduction

The first year of law school usually includes an introduction of some kind to the doctrine of stare decisis (or precedent) and the related concepts of dicta and holdings.  For the basics, see the Lexicon entry on holdings. The core idea is that majority opinions usually have a holding, which is a rule implied by the reasoning necessary to reach the decision in the case, given the legally salient facts.

This time the Lexicon is focusing on the idea of persuasive authority.  The basic idea is intuitive: the reasoning in a decision can persuade even if it does not bind.  But what does that mean?  How does the persuasion  work?  This Lexicon entry investigates those questions.  As always, the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Four Ways That Authority Can Persuade

Although the notion that authority can persuade might seem obvious, there are actually at least four different ways in which a persuasive authority might influence judges: 1) persuasion by reasons, 2) persuasion by epistemic authority, 3) persuasion by predictive power, and 4) persuasion by legitimation.  Let's take a look at each of these four ideas.

Persuasion by Reasons

First, persuasion by the force of reasons is independent of the person or institution that provides the reasons: in this regard, the reasons of Supreme Court Justices are equally persuasive as the same reasons when provided by a student law review note.  Persuasion by reasons operates through what Jürgen Habermas felicitously describes as the "unforced force of the better argument."  A sound argument has true premises and a valid or otherwise reasonable argumentative structure.  The premises of an argument might be supported by evidence, intuition, or some other form of support.  Valid arguments can have many different structures.  Deductive arguments are valid if the conclusion logically follows from the premises.  Inductive arguments do not guarantee the truth of their conclusions but purport instead to make their conclusions more likely.  "Inference to the best explanation" or "abduction" is yet a third category of reason: if you are not familiar with this idea, take a look at the Stanford Encyclopedia of Philosophy article on Abduction.  (Aside: The idea of inference to the best explanation is pervasive law!  Master it!)

In sum, a cited authority can persuade through the arguments that it makes and the evidence that it cites.  This kind of persuasion does not depend on the author's credentials or institutional power.  It depends on the quality of the reasons offered by the source that is cited.

Persuasion by Epistemic Authority

Second, consider persuasion by epistemic authority. Of course, most of us are inclined to regard what is written by a Supreme Court Justice or an eminent scholar as more persuasive than what is written in student notes, even though it is sometimes the case that the latter are sometimes correct when they disagree with either of the former. This is because we regard some persons or institutions as epistemic authorities. In the sense I am using the term, an “epistemic authority” is someone to whom some group defers because of the authority’s expertise.

In law, the idea of epistemic authority is usually based on the fact that some judges or scholars are viewed as especially learned, trustworthy, and smart.  Thus, the opinions of some Supreme Court Justices may be viewed as epistemic authorities because of the belief in the legal expertise of the Justices.  Or the author of a respected treatise (Wigmore on Evidence, for example) might have been viewed as an epistemic authority on matters within the scope of the author's expertise.

The relationship that creates epistemic authority might be viewed as dyadic—a relationship between a pair consisting of the possible epistemic authority and the individual who might defer to the epistemic authority. A given lower court judge, say Learned Hand, might not view a given Supreme Court Justice, say Tom Clark, as an epistemic authority or even as an epistemic peer or equal. But many judges, lawyers, and scholars are likely to view Supreme Court Justices as epistemic authorities, at least on some topics.  Likewise, an eminent scholar might regard herself as without epistemic peers on the topic of her expertise: if this were the case, she might not regard any source as having true epistemic authority.

Persuasion by Predictive Power

Third, opinions of the some courts may persuade because of their predictive value. Lower court judges may view the opinions of the Supreme Court as persuasive because they provide a basis for predicting the future behavior of the Court and hence the likelihood that the Court would reverse a lower court’s decision. Lower court judges may wish to avoid reversal, and hence may view dicta that is clearly endorsed by the majority of a higher court as a good source of predictions about the likely decisions of that court in the future.  Even if lower court judges do not care about reversal for personal, they may believe that it is a good idea for lower courts to cooperate with higher courts to enhance the stability, certainty, and predictability of the law.  This aspect of persuasive authority is likely to degrade over time as the composition of the higher court changes.

Persuasion by Legitimation

Fourth, there are some legal authorities (such as opinions of the Supreme Court) that may have what we might call “legitimating authority.” Given legal culture, legal arguments may be viewed as requiring legitimacy.  For example, if a lawyer can cite a Supreme Court opinion as the basis for an argument, this may be sufficient to establish the legitimacy of the argument.  A student note may not have same legitimating force--even if the reasons offered by the student note provide cogent arguments while the Supreme Court opinion might not even provide a supporting argument.  Some arguments are "on the table" whereas others are "off the wall."

Integrating the Four Types of Persuasion

Putting these pieces together, we might postulate that the full persuasive force of a statement by a purported authority  is a complex function of the reasons it provides, the epistemic authority of the author, the predictive value of the statement (if any), and its legitimating effect. Different judges may have different “persuasion functions”—some may count reasons heavily and predictive value lightly, or vice versa. 

Types of Persuasive Authority

In law, we use the word "authority" to designate a source cited by a lawyer, judge, or scholar in support of a legal argument.  The conventional view is that the holdings of decisions of a higher court are binding on lower courts within the scope of the hierarchy of authority.  Those same decisions may be persuasive authority in other jurisdictions.  And dicta in a higher court decision may be persuasive authority, even if it is not binding.  Treatises and scholarly articles are never binding authority, but they may be persuasive.

Provisions of constitutions, statutes, regulations, and rules are usually thought of as binding authority, but this idea is subject to a complex set of qualifications.  A statute that has been given an authoritative construction may only be binding "as construed," even if the construction is tantamount to judicial amendment or nullification of the statute.  This is a large topic, and this Lexicon entry can do no more than to note the existence of the complications.

A Qualification re the Idea of Authority

In this Lexicon entry, I am using the word "authority" to refer to cited sources--a standard usage in law.  In legal philosophy, the same word is sometimes used to refer to the concept of authority--in the sense in which a legal system claims authority over persons within its jurisdiction.  One theory of authority (associated with Joseph Raz) maintains that the notion of a peremptory or exclusive reason is baked into our notion of authority.  Just to be clear: I am not using the word "authority" in that sense.

Conclusion

The notion of persuasive authority may seem simple, but I hope this Lexicon entry has given you a sense of the complications.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
• Legal Theory Lexicon 017: The Rule of Law
• Legal Theory Lexicon 063: Interpretation and Construction

Bibliography

• Amy Allen, The Unforced Force of the Better Argument: Reason and Power in Habermas’ Political Theory, 19 Constellations 353 (2012).
• Alvin Goldman & Thomas Blanchard, Social Epistemology,Stanford Encyclopedia of Philosophy (2015).
• Scott Shapiro, Authority in The Oxford Handbook of Jurisprudence and Philosophy of Law  (Jules Coleman and Scott Shapiro eds. Oxford: Oxford University Press 2002).
• Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Washington University Law Review 1 (2014).
• Linda Trinkaus Zagzebski, Epistemic Authority: A Theory of Trust, Authority, and Autonomy in Belief (Oxford University Press, 2012).

(Last modified on August 9, 2020.)

Legal Theory Bookworm: "Threat of Dissent" by Kraut

The Legal Theory Bookworm recommends Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States by Julia Rose Kraut.  Here is a description:

In this first comprehensive overview of the intersection of immigration law and the First Amendment, a lawyer and historian traces ideological exclusion and deportation in the United States from the Alien Friends Act of 1798 to the evolving policies of the Trump administration.

Beginning with the Alien Friends Act of 1798, the United States passed laws in the name of national security to bar or expel foreigners based on their beliefs and associations―although these laws sometimes conflict with First Amendment protections of freedom of speech and association or contradict America’s self-image as a nation of immigrants. The government has continually used ideological exclusions and deportations of noncitizens to suppress dissent and radicalism throughout the twentieth and twenty-first centuries, from the War on Anarchy to the Cold War to the War on Terror.

In Threat of Dissent―the first social, political, and legal history of ideological exclusion and deportation in the United States―Julia Rose Kraut delves into the intricacies of major court decisions and legislation without losing sight of the people involved. We follow the cases of immigrants and foreign-born visitors, including activists, scholars, and artists such as Emma Goldman, Ernest Mandel, Carlos Fuentes, Charlie Chaplin, and John Lennon. Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King, as well as organizations, like the ACLU and PEN America, who challenged the constitutionality of ideological exclusions and deportations under the First Amendment. The Supreme Court, however, frequently interpreted restrictions under immigration law and upheld the government’s authority.

By reminding us of the legal vulnerability foreigners face on the basis of their beliefs, expressions, and associations, Kraut calls our attention to the ways that ideological exclusion and deportation reflect fears of subversion and serve as tools of political repression in the United States.

And from the reviews:

“A must-read for those who care about immigration or the First Amendment. In clear and lively prose, Kraut charts how noncitizens are doubly vulnerable under American law: treated with suspicion as strangers, and subject to expulsion based on their political beliefs. Along the way, she forces us to reckon with a deeply troubling reality: freedom of speech has not been available for everyone.”―Robert L. Tsai, author of America’s Forgotten Constitutions

“Suspicion of foreigners goes back to the earliest days of the republic…Kraut traces how different ideologies would be considered intolerably dangerous according to the dominant fears of a given era. Anarchism gave way to communism; communism gave way to Islamic radicalism.”―Jennifer Szalai, New York Times

“I opened these pages skeptically, and then could not put them down. Threat of Dissent tells the rich and instructive history of efforts to protect America’s borders, first by legislation that excluded unwanted people, and then by legal and judicial challenges to those with unwelcome ideas and beliefs. An essential book for all concerned with US immigration policy and with the free expression of ideas inside and outside the nation.”―Alice Kessler-Harris, author of A Difficult Woman: The Challenging Life and Times of Lillian Hellman

“An eye-opening and powerfully written book. Julia Rose Kraut demonstrates that though the methods and technologies used by the government to suppress political dissent in the United States have changed over the generations, the fear of radicals―and the association of foreigners with radicalism―has remained constant. Every politically engaged citizen will be riveted by this history of the architects of political suppression and the legal challenges launched by those who sought to protect core American values of freedom of speech and association.”―María Cristina García, author of The Refugee Challenge in Post–Cold War America

“This is an original, comprehensive history of one of the most pervasive and insidious forms of political repression in the United States―one few Americans know anything about. In a rich narrative spanning more than two centuries, gifted legal historian Julia Rose Kraut reveals how federal authorities routinely barred foreign dissidents who hoped to mingle freely with the public in the ‘land of the free.’”―Michael Kazin, author of War Against War: The American Fight for Peace, 1914–1918

Download of the Week: "Fiduciary Law and the Law of Public Office" by Leib & Kent

Ethan J. Leib (Fordham University School of Law) & Andrew Kent (Fordham University School of Law) have posted Fiduciary Law and the Law of Public Office: Suggestions for a Research Agenda (William & Mary Law Review, Forthcoming) on SSRN.  Here is the abstract:

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law — defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations — imposed core duties on public officeholders: Officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Office-holding came to be viewed as conditional, with officers removable for misdeeds. This law of public office reflected something that looks similar to modern fiduciary duties of loyalty and care.

In this Essay, we extend the historical record describing this law of public office, and make several new claims — historical and theoretical. First, there are strong reasons to suspect that the law of public office and private fiduciary duties developed together and influenced each other. During the critical centuries we explore, the duties of officeholders such as trustees, executors, and corporate directors were developing alongside the duties of officials such as tax collectors and government commissioners. Parliament and other actors repeatedly used the language of trust, trusteeship, guardianship, and account to define the law of public offices. And public law concerns about abuse of power and the need for honesty, fidelity, and altruism in service of others may have seeped from public law into private fiduciary law. Influential political theory about the monarchy and lesser magistrates was also using trust and related legal language to set forth a fiduciary conception of public office-holding; the theoretical developments in political theory not only drew from legal concepts but may have helped shape them, as well.

One Essay cannot decisively establish whether the similarities in language, concept, and timing were mere coincidence or rather evidence of some conscious co-development in the law of public offices, political theory, and fiduciary law. Proving (or disproving) actual causal relationships will need to be the work of the future. We conclude with some potential implications for our research agenda, should further work continue to confirm our findings here. Fiduciary political theorists should be less anxious about drawing from private law models — and private law fiduciary theorists might need to be less insistent on the purity of the private sphere. As we show, during the critical periods when fiduciary law and the law of public office come into their own, the public-private distinction wasn’t yet creating the divide that exists today. Our research agenda invites more mutual learning — both historically and for law and institutions today.

Highly recommended.  Download it while it's hot!