Legal Theory Blog

Goldsworthy on the History of Constitutional Theory in Britain

Jeffrey Denys Goldsworthy (Monash University - Faculty of Law) has posted A Brief History of Constitutional Theory in Britain (The Cambridge Constitutional History of the United Kingdom (Cambridge UP, Forthcoming)) on SSRN.  Here is the abstract:

This paper surveys the development of constitutional theory in England, and later Britain, from the Twelfth Century until today. It shows how contending theories attempted to reconcile the need for strong central authority to maintain order and justice, with the need to control that authority - either through law or political struggle - to prevent its misuse. It describes a gradual transition from theories of monarchical rule to those of mixed government and finally parliamentary democracy, and how they understood the place or role of the Church, the law, “the community” and “the people”.

Highly recommended.

Harrison on Executive Discretion, Government's Rights, and Delegation

John C. Harrison (University of Virginia School of Law) has posted Executive Discretion in Administering the Government's Rights and the Delegation Problem on SSRN.  Here is the abstract:

Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to today, executive officials have exercised substantial policy discretion in managing the government's own resources. That practice is consistent with the text and structure of the Constitution. Administering the government's resources, and making policy judgments in doing so, is at the core of carrying the law into execution. The executive itself does not have power to create programs that employ federal resources such as federal funds, but when Congress creates such a program, it may leave many important choices to the executive. At most, the Constitution requires that Congress provide an intelligible principle to guide that discretion. The non-delegation principle concerning regulation of private conduct may be more demanding than that, but the exercise of the government's own rights is a distinct category of executive activity. The practical scope of this principle is substantial. Federal spending today is a major tool through which Congress affects behavior. Like spending and contracting, federal regulation through licensing takes the form of the administration of the government's resources. Licensing of broadcasting, for example, rests on the principle that the airwaves are public and not private property, and that private people may use that resource only on terms the government sets. Licensing schemes put the government in the position of an owner, able to give licenses that permit conduct that otherwise would violate the owner's rights. Congress therefore may give executive officials substantial discretion when it creates a licensing system. The important question is the extent of Congress's power to put the government in the position of an owner. Two well-known early examples of delegation to the executive, the Indian Commerce Act of 1790, and the regulation of steamboat safety, took the form of licensing. The historical evidence does not indicate that proponents of those systems justified delegation on the grounds suggested here. It does suggest that steamboat licensing was understood to be based on federal control of the public right of navigation of interstate waterways. The executive function of administering the government's resources is a distinct category of executive activity from the standpoint of constitutional structure, and the principles that apply to delegation in other contexts need not apply in that context.

Highly recommended.

Charles & Fuentes-Rohwer on Justice Kagan’s Opinion in Chiafalo v. Washington

Guy-Uriel E. Charles (Duke University School of Law) & Luis E. Fuentes-Rohwer (Indiana University Maurer School of Law) have  posted Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics on SSRN.  Here is the abstract:

This Essay examines Justice Kagan’s electoral college decision in Chiafalo v. Washington, which uses historical gloss—post Founding historical practices—to give meaning to the Constitution and to do so in a manner that is arguably inconsistent with the text and structure of the Constitution. We argue that Justice Kagan, the democracy Justice, uses historical gloss instrumentally to constitutionalize a particular and modern view of political participation—which is best reflected by American political practices—and to reject an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Chiafalo is an attempt to update and modernize our understanding of representation and political participation. We explore some issues that are raised for the historical gloss literature and for the practice of law and democracy when gloss is used in this way to interpret the Constitution.

Cheong on Contractual Fairness & Statutory Interpretation in Australia

May Fong Cheong (Australian Catholic University - Thomas More Law School) has posted Contractual Fairness : Statutory Innovation and Statutory Interpretation (May Fong Cheong, Contractual Fairness: Statutory Innovation and Statutory Interpretation in Prue Vines and M Scott Donald (eds), Statutory Interpretation in Private Law (Federation Press, 2019), ch 11, 185-206) on SSRN.  Here is the abstract:

This chapter considers statutory innovation and statutory interpretation in two pieces of Australian legislation: the unfair contract terms law in the Australian Consumer Law, and unjust contracts under the Contracts Review Act 1980 (NSW). These provisions raise the challenge to interpret statutes which seek to give content to indeterminate value of fairness and justice. The analysis of the cases shows that the courts have faced up to the challenge of interpreting and applying open-ended criteria of unfairness and unjustness in both statutes respectively in articulating norms and precepts embodied in the provisions which reflect the values of community and society. The continued utility of both statutes, will rest, in part, on innovative and consistent application of statutory interpretation as well as sensitivity to the three disinclinations cautioned by Kirby P in West v AGC (Advances) Ltd (1986) 5 NSWLR 610.

Williams on Systems Theory & Contracts

Spencer Williams (Golden Gate University School of Law) has posted Contracts as Systems (Delaware Journal of Corporate Law, Forthcoming) on SSRN.  Here is the abstract:

A contract is much more complex than its individual terms would suggest. Yet contract scholars have traditionally taken a reductionist approach to the study of contracts. According to “contractual reductionism,” a contract can be understood through each of its constituent terms. Recent scholarship, however, has begun to challenge contractual reductionism’s term-by-term view of contracts. Building on this work, this Article provides the first application of complex systems theory to contracts, arguing that a contract is a complex system that is greater than the sum of its terms. A complex system is a system that is composed of a large number of components that interact in a nontrivial manner. Complex systems theory is an interdisciplinary field of study that has been used to analyze a broad range of complex systems including living organisms, cities, economies, technology systems, and ecosystems. One of the key findings of complex systems theory is that complex systems exhibit a surprising degree of similarity and common behavior across diverse contexts – a finding that holds when extended to contracts. To provide a framework for understanding and analyzing a contract as a complex system, the Article models a contract as a complex system using concepts drawn from complex systems theory. The Article then uses this model to demonstrate that contract systems exhibit many key properties observed in other complex systems. The Article ends by discussing how a complex systems approach to contracts informs contract design, interpretation, and analysis. The Article makes three primary contributions. First, the Article extends the scholarship challenging contractual reductionism through the first application of complex systems theory to contracts. Second, the Article models a contract as a complex system and identifies key properties of contract systems. Third, the Article shows how complex systems theory can be used to improve the design, interpretation, and analysis of contracts. The Article’s findings have significant implications for lawyers, judges, and legal technology companies.

Couturier on Criminal Justice & the Relationship Between Canadian & Indigenous Courts

Don Couturier (Alberta Court of Appeals) Judicial Reasoning Across Legal Orders: Lessons from Nunavut (Don Couturier, "Judicial Reasoning Across Legal Orders: Lessons from Nunavut" (2020) 45:2 Queen's Law Journal 319) on SSRN. Hereis the abstract:

In this article, the author explores the criminal justice relationship between Canadian courts and Indigenous laws. More specifically, by examining two recent criminal law judgments from Nunavut that rely on Inuit customary law in their reasons, R v Itturiligaq and R v Ippak, the author queries and seeks to answer whether Canadian courts ought to engage with Indigenous laws, and if so, what appropriate engagement might look like. Through identifying both the promising and cautionary elements of these judgments, the author argues that Canadian courts should actively engage with Indigenous laws to achieve more responsive legal outcomes, but that great care and caution must accompany these efforts. The author proposes guidelines for engagement that involve establishing ethical space with Indigenous legal orders at the outset of judicial analysis to determine commensurability, followed by concurrent application where principles are mutually reinforcing or deference to Indigenous laws where principles conflict. The author concedes that judicial use of Indigenous laws is no panacea; rather, its use represents an important way in which the Canadian legal system can coexist alongside revitalized Indigenous legal systems and their institutions.

The article is divided into four parts. In Part I, the author introduces the Nunavut court system and analyzes Itturiligaq and its application of Inuit Qaujimajatuqangit in light of the pluralist promise of R v Ipeelee, concluding that its reasoning instills both optimism and caution. Part II explores the philosophical and normative questions of whether Canadian and Indigenous laws are commensurate and whether non-Indigenous judges ought to engage with Indigenous laws in their judgments. In Part III, the author argues that Ippak best exemplifies judicial reasoning across legal orders that appropriately upholds both Indigenous and Canadian legal systems while respecting their incommensurabilities. Drawing on the lessons learned from Itturiligaq and Ippak, the author then develops his proposal for responsible engagement. Lastly, in Part IV, the author offers suggestions for institutional and legislative reform that must accompany judicial engagement with Indigenous laws. As the author indicates, the success of Indigenous-Canadian pluralism requires re-balancing sentencing objectives away from the rigid Canadian application of deterrence and denunciation and towards a system more focused on rehabilitation.

Horvath on Severability as Deregulation

George Horvath (University of Akron School of Law; University of California, Berkeley, School of Law) has posted Severability as Deregulation: The Construction of a New Doctrine Through Affordable Care Act Litigation (15 Charleston Law Review (Forthcoming 2020)) on SSRN.  Here is the abstract:

Scholars have sharply criticized the plaintiffs’ severability argument in the ongoing challenge to the Affordable Care Act (ACA), California v. Texas, as a flawed application of contemporary severability doctrine that would disrupt broad swaths of the U.S. healthcare system. This Article argues that the severability argument put forward by the Texas plaintiffs, as well as the District Court’s severability analysis in that case, the Department of Justice’s severability argument on appeal, and the severability argument made by the so-called “Joint Dissent” in National Federation of Business v. Sebelius together represent an emerging doctrinal alternative to the traditional, Alaska Airlines severability doctrine. The key feature of the new doctrine is a super-strong presumption of inseverability that would apply to all of the constitutional provisions in a partially unconstitutional statute. Under such a doctrine, wholesale invalidation of partially unconstitutional statute would become the rule. Regardless of the outcome in California v. Texas, adoption of parts of the “Joint Dissent/Texas doctrine” would radically alter courts’ approach to severability and forward a deregulatory agenda.

The Joint Dissent/Texas doctrine was forged in litigation challenging a singular legislative product, the Affordable Care Act. But the origin of the doctrine in public choice accounts of the legislative process underscore the fact that the super-strong presumption of inseverability would apply to most if not all partially unconstitutional statutes. The Joint Dissent/Texas doctrine is also a response to a changed legislative reality. Congress increasingly relies on omnibus legislation, folding in provisions that cover a wide range of policy areas. Adoption of the Joint Dissent/Texas doctrine would be a powerful intervention by the Court into the legislative processes that Congress has adopted in recent decades. The Joint Dissent/Texas doctrine, if adopted, would have far-reaching effects on the relative allocation of power between Congress on the one hand and the states, the courts, and the President on the other. And in each case, Congress would find itself on the losing end. The doctrine would shift power away from Congress in an era in which congressional power is already at a nadir. Regardless of the outcome in California v. Texas—regardless of the contours of the Affordable Care Act and the U.S. healthcare enterprise in the wake of the Supreme Court’s expected decision—the Joint Dissent/Texas approach to severability is an emerging reality that must be reckoned with.

Schauer on the Strength of Rules as "Ruleness"

Frederick Schauer (University of Virginia School of Law) has posted Ruleness (In Legal Rules in Practice (Baudouin Dupret, Julie Colemans & Max Travers Eds.) (London: Routledge, forthcoming 2021)) on SSRN.  Here is the abstract:

The distinction between rules and standards is familiar, but that is not the only way in which the force of a rule can be measured. Of equal and perhaps greater importance is the strength that a rule has against the potentially competing consideration of the background justification for the rule, and against the potentially competing considerations of justice, equity, practicality, efficiency, and the like. This degree of strength against such competing considerations is what I label “ruleness,” and it is not so much an attribute of individual rules as it is an attribute that rules in general are given in a particular environment by those who apply, enforce, and interpret the rules. This paper, prepared for a volume on the sociological and anthropological aspects of rules, develops this idea of ruleness, and suggests that the degree of ruleness in a particular society or legal (or non-legal) environment can be a fruitful avenue for systematic and illuminating empirical research.

Highly recommended.

Smith on Justification of Legal Norms via Intermediate Moral Principles

Stephen Smith (McGill University - Faculty of Law) has posted Intermediate and Comprehensive Justifications for Legal Rules (Simone Degeling, Michael Crawford, Nicholas Tiverios (eds.), Justifying Private Rights, Hart Publishing, Forthcoming) on SSRN. Here is the abstract:

In this essay, I explore two ways of justifying legal rules. The first, which is adopted by some (but only some) academics, justifies legal rules on the basis of comprehensive moral theories; for example, utilitarian or Kantian moral theories. The second way, which is adopted by nearly all judges (though also by many academics), justifies legal rules on the basis of intermediate moral principles, values, or beliefs; for example, fairness, honesty, dignity, reasonableness, keeping one’s word, proportionality, clarity, stability, and predictability.

My exploration focuses on two questions. First, why do judges restrict themselves to ‘intermediate justifications’? The most plausible explanation, I argue, is that, in the pluralist societies that are my focus, for legal rules to be practically effective and, more importantly, for legal rules to be legitimate, they must be acceptable to people who hold different (or no) comprehensive moral theories. And for justifications to be acceptable to such people, they must be limited to intermediate principles. The second question is whether, assuming the ‘acceptability thesis’ (as I will call it) not only explains but also justifies the judicial approach, the thesis also applies to academics. Should academics also limit themselves to intermediate justifications for legal rules? My answer, with certain qualifications, is that they should. Although the ‘practical objection’ to comprehensive justifications has only a limited application to academics, the ‘principled objection’ (the objection from legitimacy) applies with full force. The argument that good justifications for legal rules should in principle be acceptable to people who hold different (or no) comprehensive theories applies regardless of who is offering the justification.

For an earlier version of a similar argument that draws on the extensive philosophical literature on the idea of public reason, see Lawrence B. Solum, Public Legal Reasons.  One advantage of bringing the philosophical literature to bear on the problem of legal reasons is that it allows legal theorists to take a variety of moves and countermoves in the public reason debate into account.  Of course, John Rawls's work on the idea of public reason is key.

For a basic introduction to the ideas of "Public Reason" and Cass Sunstein's idea of incompletely theorized agreements, see Legal Theory Lexicon 009: Public Reason.

Manderson on Visual Images & Concepts of Governance

Desmond Manderson (ANU College of Law; ANU College of Arts and Social Sciences; McGill University - Faculty of Law) has posted The Dancer from the Dance (Index Volume 2 (2020), pp. 17-38) on SSRN.  Here is the abstract:

This essay argues that representations of public space both illustrate concepts of governance in visual terms, and actively constitute, through image, those modes. Starting from images of public space in Lorenzetti and Hobbes, the author moves to consider contemporary representations of public space under the influence of neoliberalism. A particular focus is place on video games as constitutive of relations to the public realm, space and order. A sub theme of the essay is the role of pandemics in how we constitute a vision of the public realm. Lorenzetti, Hobbes, and neoliberalism can both be seen as having been profoundly influenced by concepts and varieties of disease.

Seipel on Artificial Intelligence & Administrative Separation of Powers

Matthew Seipel has posted Robo-Bureaucrat and the Administrative Separation of Powers on SSRN.  Here is the abstract:

This Essay argues that the administrative state's use of artificial intelligence (AI) creates concentrated, unchecked power at the agency leadership level. The Essay draws from Professor Jon Michaels' theory of the administrative separation of powers, and it describes how AI in government disrupts this separation. To alleviate this concern, the Essay puts forward one proposal: Congress should amend federal public sector labor law to require collective bargaining over an agency’s decision to use AI.

Schauer on Rules in the Law of Evidence

Frederick Schauer (University of Virginia School of Law) has posted The Role of Rules in the Law of Evidence (Philosophical Foundations of Evidence Law (Chrstian Dahlman, Alex Stein, and Giovanni Tuzet, eds., Oxford University Press, forthcoming 2021)) on SSRN.  Here is the abstract:

The theoretical side of the law of evidence has long been dominated, at least since Jeremy Bentham, by debates between the so-called free proof tradition, on the one hand, and the predominance of rules if evidence, on the other. Bentham and the widespread approach in the civil law world are hostile to the rule-based approach that dominates the common law world’s approach to evidence. Indeed, even such prominent common law evidence theorists as James Bradley Thayer and John Henry Wigmore saw the appeal of the free proof tradition, while attributing the use if rules of evidence in common law jurisdictions largely to the institution of the jury. This chapter in the forthcoming Philosophical Foundations of Evidence Law describes these debates, and offers a robust defense, against Bentham and his followers, of a rule-based approach to evidence. That defense, not limited to the importance of rules for the guidance and constraint of juries, is based partly on the value of rules as guarding against common psychological decision-making weaknesses present for judges as well as for jurors. But the defense also connects a rule-based approach to evidence with the approach of the legal system generally. If the legal system often has good reasons for using legal rules rather than instructions to its decision-makers to simply make the best all-things-considered decision for the matter at hand, then a rule-based approach to evidence can be seen as consistent with the approach of law generally, and the free proof tradition as the odd anomaly.

Highly recommended.

Duff on the Model Penal Code's De Minimis Provisions

R. A. Duff (University of Stirling - Department of Philosophy) has posted 'De Minimis' and the Structure of the Criminal Trial on SSRN.  Here is the abstract:

The Model Penal Code’s “De Minimis” provisions (§ 2.12) cover different kinds of case in which, for reasons of equity, a prosecution should be dismissed. An exploration of these different cases illuminates some important general issues about the structure of the criminal process, and about the processes of criminalization. These include the significance of the difference between dismissing a case and acquitting the defendant, and of the distinction between offences and defenses; whether criminal offences should always be so defined that they specify at least a pro tanto wrong, or may sometimes legitimately specify only a prima facie wrong — and whether this is consistent with the presumption of innocence; what kinds of conduct we can properly be expected to answer for in a criminal court; and the proper division of labor, and of responsibilities, between legislatures, prosecutors and courts in determining what kinds of conduct are to be defined and treated as criminal wrongs.

Recommended.

Segev on the Continuity Argument

Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has posted Continuity in Morality and Law (Theoretical Inquiries in Law, Forthcoming) on SSRN.  Here is the abstract:

According to the an influential and intuitively appealing argument (the Continuity Argument): (1) morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment when the action is almost reasonable and no punishment at all when action is reasonable (as positive law sometimes does). In this paper, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong – even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are both reasons in favor and reasons against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous and specifically that it should be often continuous.

Highly recommended.

Toler on Law Office Originalism

Lorianne Updike Toler (Information Society Project, Yale Law School) has posted Law Office Originalism on SSRN.  Here is the abstract:

The Constitution’s framing history features heavily in Warren and Burger Supreme Court opinions overturning established precedent. This led Alfred Kelly in 1965 to famously criticize the Court for doing “law office history,” cherry picking shallow historical evidence to achieve a desired result. With the elevation of William Rehnquist to Chief Justice in 1986, neo-critics hurled the epithet anew at both the Rehnquist and Roberts Courts—particularly at the self-identified Originalist Justices who claim Framing history should drive interpretation and cabin judicial discretion. Although Originalism as “law office history” has become an a priori assumption for much of legal academe, none has provided a systematic review of these claims, including the Supreme Court’s historical methodology and its purchase power to cabin judicial will.

This empirical study—which canvases the entire universe of 299 references to the Constitutional Convention in 239 cases—seeks to supply that deficiency. Based on the results gathered in its prequel, Pre-Originalism, and to test Originalism’s constraint function, this study hypothesizes that 1) the Court’s historical methodology is generally bad, 2) that Originalist Justices’ historical methodology was no better; and 3) that Justices’ engagement in better historical methodology would result in significant political deviations. In that the Court references the Convention without having looked at the primary record or, indeed, any source nearly half of the time, over-relies on non-historical secondary sources for context, and fails to cite to both primary and secondary sources in all but a small minority of its references, the first hypothesis was confirmed. Likewise, based on a comparison of three Originalist Justices to three other Justices with jurisprudential commitments and the Court overall through, the second hypothesis was also confirmed. Finally, through a regression analysis comparing judicial methodology to historical depth, an interactive variable of political deviation, and several other controls, the third hypothesis was rejected in part, especially for Justice Thomas. However, in that the regression analysis shows that deeper and more primary Framing sources can create significant political deviations for the two surveyed Justices without jurisprudential commitments and demonstrated non-significant trends for all other surveyed Justices other than Justice Thomas, the study suggests that better history may have some constraining potential. In particular, better historical methodology, particularly citing more primary sources, could be associated with Justices deviating from expected political outcomes in significant ways.

To meet these obligations and improve the constraint function of any use of history, Originalism included, this article makes multiple practical suggestions for improving the historical methodology of the Court and the greater legal community.

Legal Theory Lexicon: Speaker's Meaning and Sentence Meaning

Introduction

Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do.  In a previous Legal Theory Lexicon entry, a distinction was made between "interpretation" and "construction."  Although we could use other words to express the distinction, it expresses an important conceptual difference between two activities: (1) discovering the "meaning" of a legal text, and (2) determining the legal effect given to the text.  Thus, statutory interpretation aims to recover the meaning of the words and phrases of a statute in context, whereas statutory construction provides the legal norms that courts will use to apply the text to the facts of a particular case.

With this distinction in mind, we can ask the question, "How do we figure out the meaning of a legal text?" In some cases, we can tell what the statute unambiguously means without asking the "how" question.  But other cases are more difficult.  When there is an argument about what a statute means, it may be helpful to turn to theoretical linguistics and the philosophy of language for an a theory of communication.

One such theory was developed by the philosopher Paul Grice.  A key component of Grice's theory is the distinction between "speaker's meaning" and "sentence meaning."  Although most lawyers have never heard of Grice, every lawyer has an intuitive grasp of the difference between literal meaning (the bare meaning of the words as combined by syntax and punctuation) and the meaning that a speaker or author intended to convey in context.  This entry in the Lexicon provides a basic introduction to Grice's ideas.  As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Speaker's Meaning

The meaning that a speaker or author intended to convey to a listener or reader is what Grice calls "speaker's meaning."  And Grice developed a very precise and illuminating theory.  Grice uses the word "utterance" to refer to oral communications, and I will use that word as well.  For Grice the speaker's meaning of an utterance is the meaning that the speaker intended to convey to the listener via the listener's grasp of the speaker's communicative intentions.

Wow!  That sounds complicated!  Let's unpack Grice's formulation step by step.  We can start with an example.  It is a Tuesday and the following exchange takes place:

Ben says to Alice: "Pizza day!"

Alice says, "Great!  See you there."

Suppose that in context, when Ben says "Pizza day!" he means to say: "Today is the day that we usually have Pizza at Lampo's at noon, and I don't have a conflict."  But he doesn't have to spell it out, because Alice knows that every Tuesday, Ben and Alice have Pizza at Lampo's every Tuesday at noon unless Ben has a meeting.  When Ben says "Pizza day," Alice relies on her background knowledge and grasps that by saying "Pizza day!" Ben is conveying that he plans to meet her for Pizza.  By replying "Great!  See you there", Alice conveys that she is pleased and that she will be at Lampo's at noon today.

Notice that the content communicated by Ben and Alice is much richer in content than the literal meaning of their utterances.  This brings us to the idea of "sentence meaning."

Sentence Meaning

Grice contrasted the speaker's meaning of a particular utterance on a particular occasion with sentence meaning.  The sentence meaning of an utterance is simply the literal meaning of the words, phrases, and sentences.  The literal meaning of "Pizza day" is very sparse.  Pizza is a food consisting of a crust and toppings such tomato sauce and cheese.  Day is a unit of time.  The phrase "pizza day" could mean any number of things.  It might be a day upon which there are pizzas--pizza day at the cafeteria.  Or it might be a day when a particular person, Vibiana, ate a slice of pizza.  Or it could be the day when the refrigerated truck delivers frozen pizzas to the market.  The expression "pizza day" is incomplete when it is considered out of context.  It has meaning, but that meaning is sparse.

Of course, "pizza day" isn't even a grammatically complete sentence, but we can imagine Ben saying, "Today is pizza day," which is a grammatically complete sentence.  Notice, however, that the literal meaning of "Today is pizza day." is still ambiguous.  It could express that idea that today is the day Ben and Alice have pizza for lunch or the day when the truck delivers frozen pizzas to the market.  This grammatically complete sentence does not express a complete thought if it is considered without any context.

The account of sentence meaning that I have just offered is simplified.  Grice's own explication of this idea changed over time and was expressed in technical language.  But I hope that I have conveyed the gist of his idea.  The speaker's meaning of an utterance is the meaning of the utterance on a particular occasion--the meaning that the speaker intended to convey.  The sentence meaning of an utterance is the meaning that the words have generally and is a function of the conventional semantic meanings of word and phrases as combined by the conventions and regularities of syntax (and in the case of written communication, punctuation as well).

The Relevance of Speaker's Meaning and Sentence Meaning to Legal Interpretation

There are many different theories of legal interpretation and their vocabulary differs with context.  Let's use statutory interpretation and construction as an example.  There are three basic views of statutory interpretation:

• Textualism: the legal norms that implement a statute should be determined by plain meaning of the statutory text.
• Purposivism: the legal norms that implement a statute should be determined by the objective purpose of the statute, where objective purpose is understood as the purpose that an ideal legislature would have had in enacting the statutory text.
• Intentionalism: the legal norms that implement a statue should be determined by the subjective policy preferences of the actual legislators that enacted the statute.

The distinction between speaker's meaning and sentence meaning allows us clarify these theories.  For example, textualism is sometimes criticized on the grounds that textualists are literalists who ignore context; in other words, the critics assume that textualists aim to recover the sentence meaning of the statutory text.  Textualists themselves deny this.  They argue that they are concerned with the meaning of the statutory text but only for the purpose of clarifying the meaning that the statute conveyed.  In other words, they are aiming to recover something that is more like speaker's meaning than it is like sentence meaning.  Purposivism, on the other hand, is only indirectly concerned with the meaning of the statute: because purposivists are after an idealized purpose they may sometimes prefer to focus literal meanings (sentence meaning) to contextualized meanings (speaker's meaning)--because the very sparseness of sentence meaning creates an empty vessel into which a judge's version of objective purpose may be poured.

Likewise, the idea of speaker's meaning helps us to understand intentionalism.  Intentionalism is concerned with intentions, but the kind of intention is not the communicative intentions that Grice's idea of speaker's meaning uses.  Instead, intentionalists are concerned with policy preferences.  This distinction is important.  If intentionalism aimed to recover the communicative intentions of the legislature, it would actually be a form of textualism.  In my experience, it is common for discussions of statutory interpretation to equivocate on this issue.  When that happens, conceptual confusion results.

Conclusion

There is much more to be said about the speaker's meaning, sentence meaning, and legal communication, but I hope that this entry in the Lexicon has given readers a basic understanding of Grice's distinction and the ways in which it can shed light on questions of legal theory.

Related Lexicon Entries

• Legal Theory Lexicon 021: Speech Acts
• Legal Theory Lexicon 022: Intention
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 051: Vagueness and Ambiguity
• Legal Theory Lexicon 063: Interpretation and Construction
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 079: Communicative Content and Legal Content
• Legal Theory Lexicon 094: Words and Concepts

Bibliography

• H.P. Grice, Utterer's Meaning, Sentence-Meaning, and Word-Meaning, 4 Foundations of Language 225 (1968).
• Paul Grice, Studies in the Way of Words (1989).
• Lawrence B. Solum, Contractual Communication, 133 Harv. L. Rev. F. 23 (2019).

(This entry in the Legal Theory Lexicon was first created on October 25, 2020.)

Legal Theory Bookworm: "Why Do We Still Have the Electoral College?" by Keyssar

The Legal Theory Bookworm recommends Why Do We Still Have the Electoral College? by Alexander Keyssar.  Here is a description:

With every presidential election, Americans puzzle over the peculiar mechanism of the Electoral College. The author of the Pulitzer finalist The Right to Vote explains the enduring problem of this controversial institution.

Every four years, millions of Americans wonder why they choose their presidents through the Electoral College, an arcane institution that permits the loser of the popular vote to become president and narrows campaigns to swing states. Most Americans have long preferred a national popular vote, and Congress has attempted on many occasions to alter or scuttle the Electoral College. Several of these efforts―one as recently as 1970―came very close to winning approval. Yet this controversial system remains.

Alexander Keyssar explains its persistence. After tracing the Electoral College’s tangled origins at the Constitutional Convention, he explores the efforts from 1800 to 2020 to abolish or significantly reform it, showing why each has failed. Reasons include the complexity of the electoral system’s design, the tendency of political parties to elevate partisan advantage above democratic values, the difficulty of passing constitutional amendments, and, importantly, the South’s prolonged backing of the Electoral College, grounded in its desire to preserve white supremacy in the region. The commonly voiced explanation that small states have blocked reform for fear of losing influence proves to have been true only occasionally.

Keyssar examines why reform of the Electoral College has received so little attention from Congress for the last forty years, and considers alternatives to congressional action such as the National Popular Vote Interstate Compact and state efforts to eliminate winner-take-all. In analyzing the reasons for past failures while showing how close the nation has come to abolishing the institution, Why Do We Still Have the Electoral College? offers encouragement to those hoping to produce change in the twenty-first century.

And from the reviews:

“Comprehensive and full of historical insight. Even specialists in political and constitutional history will encounter surprises…As another presidential election looms, [it] deserve[s] a wide readership.”―Eric Foner, London Review of Books

“America’s greatest historian of democracy now offers an extraordinary history of the most bizarre aspect of our representative democracy―the electoral college. In a clear and complete account of this anomaly’s origins and how it has survived, we can see the outlines for how it might be replaced, or at least improved upon. This is a brilliant contribution to a critical current debate, just in time to help guide effective reform.”―Lawrence Lessig, author of They Don’t Represent Us

“A rigorous historian of the institution.”―Steve Coll, New Yorker

“One of the chief virtues of Alexander Keyssar’s remarkable new book Why Do We Still Have the Electoral College? is that it conclusively demonstrates the absurdity of preserving an institution that has been so contentious throughout U.S. history and has not infrequently produced results that defied the popular will…A scholarly masterpiece…Keyssar has crafted an absorbing, if dispiriting, narrative about the durable obstacles to structural change in the United States.”―Michael Kazin, The Nation

“To fully explain how difficult the Electoral College is to dislodge, Keyssar chronicles more than two centuries of near-constant disputation and battle.”―Lee Drutman, Washington Monthly

“Perfectly timed…Keyssar tells a riveting and winding tale about attempts to reform the Electoral College and replace it with either a national popular vote or a distribution of electors in proportion to the state’s popular vote…His confrontation with racism in the U.S. as it relates to electoral reform―a topic that isn’t often viewed through this lens―is one of the strengths that make this book well worth the read.”―Kyle Scott, LSE Review of Books

“Sets out to explain the persistence of a technique that in public opinion polls has never accumulated support from a majority of Americans…[Keyssar’s] telling, artfully balancing broad themes and specific anecdotes, is both readable and valuable; knowing how we got here is a useful prerequisite to charting how to get where we want to be.”―Daniel B. Moskowitz, Washington Times

“This is a powerful work twice over. Its contributions to the debate over the Electoral College’s effects on our politics are profound. No less important, though, are the fascinating accounts of the changing rules governing presidential elections since the nation’s founding, a turbulent and largely unknown history. Keyssar’s lucid scholarship does justice to the past while it forcefully informs the present.”―Sean Wilentz, author of No Property in Man

“Keyssar, our great narrator of the American right to vote, is a national treasure who keeps giving us the history we need right when we need it. In this thrilling achievement, he tells the history of the Electoral College―how it has repeatedly eroded democratic values and how we might come to replace it in the twenty-first century. This is a dazzling contribution not just to American history but to the American future.”―Congressman Jamie Raskin (Maryland)

“A masterpiece. Keyssar shows us that America’s Electoral College has ever drifted on turbulent waters, surviving various near-misses at reform both local and national. He leaves readers with the humbling reminder that popular sovereignty can ossify the rules of election, even as he lays bare the political vulnerabilities of the Electoral College and the real possibilities for change.”―Daniel Carpenter, author of Reputation and Power

Download of the Week: "The Empirical Reasonable Person" by Jaeger

The Download of the Week is The Empirical Reasonable Person by Christopher Brett Jaeger.  Here is the abstract:

The reasonable person standard is central to law, and to tort law in particular. But there is much debate about what it means for a person to be reasonable. Some scholars argue that reasonableness is an economic prescription, dictating that people should take (only) cost-justified precautions. Others contend that reasonableness is grounded in community customs or norms. Surprisingly, this scholarly debate has always been more philosophical than empirical. Though it is often lay jurors who determine whether litigants’ behavior is reasonable, very little work has actually examined how laypeople make this determination.

This Article approaches the reasonableness debate from a fresh empirical perspective, examining the factors that influence whether laypeople judge behavior reasonable. Across four experiments, participants’ judgments consistently depended on information about the behavior of others—and never depended on whether precautions were cost-justified. These findings supply the first experimental evidence that lay decision makers understand reasonableness more in behavioral than in economic terms; indeed, they may not understand reasonableness in economic terms at all.

After describing the experimental findings, the Article unpacks some of their implications. First, the Article contends that tort law’s reasonable person standard both is and should be informed by observations and beliefs about others’ conduct. Second, the Article identifies challenges that arise from conceiving of the reasonable person in economic terms. Finally, the Article raises the possibility that decision makers’ understanding of reasonableness varies—and perhaps should vary—depending on the nature of the alleged negligence at issue.

Highly recommended.  Download it while it's hot!

Ordower on Avoiding Federal & State Constitutional Limits in Taxation

Henry Ordower (Saint Louis University - School of Law) has posted Avoiding Federal and State Constitutional Limitations in Taxation (Julio Homem de Siqueira, et al., eds. Princípios Constitucionais Tributários (Tax Principles and Constitutional Law) Belo Horizonte, Brazil, Forthcoming) (168 Tax Notes Federal 1447 (August 24, 2020) and 97 Tax Notes State 803 (August 24, 2020)) on SSRN.  Here is the abstract:

This article reviews some federal and state constitutional law challenges to tax legislation in the US and considers how taxing and other revenue raising legislation tends to withstand constitutional challenge.

Part I of this article examines instances in which the Supreme Court reviewed state taxing laws for conflict with the Constitution and overruled its earlier decisions in similar cases. One case involving a poll or capitation tax worked its way through the courts as the Constitution was being amended to prevent the states from using a poll tax in the future. Another case from 2018 resolves a longstanding tax collection and avoidance problem with state sales taxes. Part II focuses on a single longstanding Supreme Court precedent limiting federal tax law under the Constitution which Congress increasingly has not followed. The decision and recent congressional action is contextual in the current discussions of other taxing proposals. Part III considers some areas in which constitutional limitations exist but legislatures and courts seem to have no interest in addressing the limitations. Part IV concludes.

Stephanopoulos on Electoral Power

Nicholas Stephanopoulos (Harvard Law School) has posted The Sweep of the Electoral Power (Constitutional Commentary, Forthcoming) on SSRN.  Here is the abstract:

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts.

Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.

Highly recommended.

Sunstein on Post-Election Chaos

Cass R. Sunstein (Harvard Law School) has posted Post-Election Chaos: A Primer on SSRN.  Here is the abstract:

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. When the vote is close, and when people disagree about who won, the Constitution does not sort out the respective roles of the states, the Electoral College, Congress, and the Vice President. The Electoral Count Act of 1887 is the closest thing to a roadmap for handling controversies after election day, and on many issues, it offers helpful guidance. At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity. Taken together, the Constitution and the Electoral Count Act answer numerous questions, but they also leave important ones unanswered, including the role of the House and Senate amidst allegations of fraud and the proper role of the Vice President. This brief primer identifies the main answers and the principal open questions.

Highly recommended.

Jaeger on the Empirical Legal Person

Christopher Brett Jaeger (New York University School of Law) has posted The Empirical Reasonable Person (Alabama Law Review, Forthcoming) on SSRN.  Here is the abstract:

The reasonable person standard is central to law, and to tort law in particular. But there is much debate about what it means for a person to be reasonable. Some scholars argue that reasonableness is an economic prescription, dictating that people should take (only) cost-justified precautions. Others contend that reasonableness is grounded in community customs or norms. Surprisingly, this scholarly debate has always been more philosophical than empirical. Though it is often lay jurors who determine whether litigants’ behavior is reasonable, very little work has actually examined how laypeople make this determination.

This Article approaches the reasonableness debate from a fresh empirical perspective, examining the factors that influence whether laypeople judge behavior reasonable. Across four experiments, participants’ judgments consistently depended on information about the behavior of others—and never depended on whether precautions were cost-justified. These findings supply the first experimental evidence that lay decision makers understand reasonableness more in behavioral than in economic terms; indeed, they may not understand reasonableness in economic terms at all.

After describing the experimental findings, the Article unpacks some of their implications. First, the Article contends that tort law’s reasonable person standard both is and should be informed by observations and beliefs about others’ conduct. Second, the Article identifies challenges that arise from conceiving of the reasonable person in economic terms. Finally, the Article raises the possibility that decision makers’ understanding of reasonableness varies—and perhaps should vary—depending on the nature of the alleged negligence at issue.

Highly recommended.  Download it while it's hot!

Stein on Second-Personal Evidence

Alex Stein (Israel Supreme Court) has posted Second-Personal Evidence (Philosophical Foundations of the Law of Evidence (Christian Dahlman, Alex Stein and Giovanni Tuzet, eds., Oxford University Press, 2021, Forthcoming)) on SSRN.  Here is the abstract:

Before Hohfeld, legal insiders intuited that law is second-personal in all of its operations. After Hohfeld, they knew it. Hohfeld’s scheme of jural opposites and correlatives unfolded an analytical proof that every legal entitlement ultimately transforms into a person’s right, or lack thereof, to use state power in order to force another person into an action or an inaction.

This insight has important implications for the law of evidence as a system of rules that help courts ascertain the facts underlying the disputed entitlements. As the structure of those entitlements and the underlying interplay between the rightholder’s authority and the duty-bearer’s accountability are unchangeably second-personal, facts that courts need to ascertain and—critically—the procedures they must carry out in ascertaining those facts, ought to be second-personal as well. As a corollary, courts must only rely upon second-personal evidence, that is: upon information concerning the alleged jural relationship between the holder of the underlying entitlement and the bearer of the correlative duty or obligation.

This requirement originates from the right to autonomy enjoyed by every individual in a free society. Under the autonomy framework, an individual becomes accountable for her actions only when she abuses her autonomy by violating the autonomy of another person or a group of people—that is, when she commits a crime, a tort or fails to perform a contract, and by doing so causes harm to another person or to society at large. Consequently, evidence capable of proving one of those wrongs must show what the individual actually did and did not do and what happened to the victim of the alleged misdeed. To satisfy this fundamental requirement, evidence furnished against the alleged wrongdoer must be open to maximal individualized scrutiny: it cannot be purely statistical; and it also ought to allow the individual to examine whether it is applicable to the case at bar. This prerequisite should also benefit the victim of the alleged misdeed—the rightholder who claims to have a legal authority to impose punishment upon or exact compensation or another remedy from the alleged wrongdoer. Evidence purporting to negate the claims made by the alleged rightholder must focus strictly on her interactions with the defendant; and it must also be fully open to scrutiny aiming to ascertain its case-specific implications. This twin requirement defines the modus operandi of the Anglo-American system of evidence. Specifically, it explains and justifies the workings of the burden of proof doctrine, the rule against naked statistical evidence, and the rules regulating the admission of hearsay and character evidence.

Highly recommended.

Bruckner on Higher Education Quality

Matthew A. Bruckner (Howard University School of Law) has posted The Forgotten Stewards of Higher Education Quality (11 U.C. Irvine L. Rev. 1 - 41 (2020)) on SSRN.  Here is the abstract:

A “triad” of regulators is supposed to ensure that student loan borrowers are not harmed by low-value institutions of higher education, including exploitative profiteers operating fly-by-night or predatory institutions of higher education. The triad has failed. Millions of students have borrowed billions of federal student loan dollars that they won’t ever repay, causing borrowers to suffer needless economic harm and psychological anguish. But these harms were, are, and remain mostly preventable. This Article appears to be the first law review article to consider the states’ role in policing institutional quality and ensuring that student borrowers are not preyed upon by low-value institutions of higher education. It suggests concrete steps states could take, such as adopting a state version of financial responsibility scores, the gainful employment rule, or a cohort default rate metric, to avoid being characterized as the forgotten stewards of higher education quality.

Ganty on Poverty & Anti-Discrimination Law in Europe

Sarah Ganty (Yale Law School) has posted Poverty as Misrecognition: What Role for Anti-discrimination Law in Europe?  on SSRN.  Here is the abstract:

It is widely agreed on that victims of discrimination on traditional status grounds such as gender, race and religion are overrepresented among the poor and undereducated. People living in poverty also face discrimination because of their socioeconomic situation. Many national, European and international anti-discrimination provisions prohibit discrimination based on a person’s socioeconomic situation. It is striking, however, that this is barely applied in practice. There is little case law related to this at national, international and European levels. This situation is surprising, especially in the context of the financial retrenchment ongoing since 2008, and regarding the numerous accounts of direct and indirect discrimination affecting people who are unemployed, undereducated, poor or homeless. On the basis of domestic – Belgian, French and British – and European material, this paper argues that the prohibition of discrimination on grounds of social condition is an empowering legal tool which adds value to Human Rights law, EU law and Discrimination law in the protection of socioeconomically disadvantaged people – especially regarding issues of misrecognition – for four main reasons: the exclusive applicability of this ground in some cases, its important cross-cutting role in cases of multiple discrimination, the direct scrutiny of the socioeconomic position of the applicants which this ground implies, and its determining role in combating stereotypes, prejudice and stigma against poor and undereducated people.

Malawer on International Trade, China, Recent Cases, & the 2020 Election

Stuart Malawer (George Mason University (Schar School of Policy & Government)) has posted Trump, Recent Cases and the 2020 Presidential Election (China & WTO Rev. 2020:2; 407-416) on SSRN.  Here is the abstract:

I will discuss recent U.S. Supreme Court cases as well as international trade cases decided this year by the specialized international trade courts in the United States. I will then discuss recent U.S. trade action concerning China and put this in the context of President Trump’s generalized approach to China and international trade. I will conclude with a few observations pertaining to the upcoming presidential election in the United States.

The U.S. Supreme Court recently ruled on two highly politicized and historic cases on executive power. Observers have commented that these decisions have restricted excessive claims of executive authority. However, these same observers have overlooked a United States Court of International Trade decision made at about the same time that limits presidential authority on trade issues.

These cases ought to be placed in the context of even more recent restrictions President Trump has placed on Chinese trade and investment activities. Additionally, those restrictions should be seen in the broader context of President Trump’s generalized hatred of laws and rules, both domestic and international, which is being especially accentuated in the run-up to the presidential election this November.

Elliott on Associations & Cities as Private Attorneys General

Heather Elliott (University of Alabama - School of Law) has posted Associations and Cities as (Forbidden) Pure Private Attorneys General (61 Wm. & Mary L. Rev. 1329 (2020)) on SSRN.  Here is the abstract:

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to the organization’s purpose.

Yet when Hunt interacts with the complexities of modern standing doctrine, it becomes clear that many associations, particularly those that are large or have broad purposes, can show standing for virtually any lawsuit. Moreover, recent scholarship has plausibly suggested that municipalities can be treated as associations under Hunt; municipal purposes are so broad, and some cities are so big, that they could litigate almost any case they wish. But the purpose of the ban on pure private attorneys general is to avoid giving any plaintiff a roving commission to enforce the law. Thus, Sierra Club and Hunt are in serious tension.

This unnoticed conflict is further evidence of the notorious incoherence of Article III standing itself and might sensibly trigger a rethinking of the entire doctrine. Such reform seems highly unlikely, however, given nearly fifty years of standing’s reign. Alternatively, Congress—which is far better placed than the courts to make necessary factual determinations—could take steps to resolve the conflict between Sierra Club and Hunt. But Congress has other priorities. More modestly, the Court could make some changes at the margins of Hunt and Sierra Club, to ameliorate the tension between the two strands of standing doctrine.

Colón-Ríos on Rousseau's Constitutionalism

Joel I. Colón-Ríos (Victoria University of Wellington - Faculty of Law) has posted Review of Eoin Daly's Rousseau's Constitutionalism: Austerity and Republican Freedom ("Review of Eoin Daly’s Rousseau’s Constitutionalism: Austerity and Republican Freedom" Cambridge Law Journal (2019) 78(2) pp 471-474) on SSRN.  Here is the abstract:

Perhaps more than any other social contract theorist, Rousseau is a frequent target of constitutionalists. His system of popular sovereignty can be understood as exemplifying all that is wrong with unlimited political power. Indeed, constitutionalism, as a theory of limited government, is the perfect antidote for the type of dangers associated with an uncontrolled Rousseauian sovereign. Eoin Daly's Rousseau's Constitutionalism presents an interesting and persuasive challenge to that approach. Daly argues that Rousseau should be read as advancing a distinct constitutionalist ideal directed at protecting citizens not only from the domination of arbitrary state power, but from the different (and not necessarily legal or political) conditions that make self-government impossible. Daly advances this argument in five chapters that engage both with most of Rousseau's published writings and with some of the main works on the subject in the secondary literature.

Sopko on Snap Removal

Adam B. Sopko (Northwestern University - Northwestern Pritzker School of Law) has posted Swift Removal (Federal Courts Law Review (2020 Forthcoming)) on SSRN.  Here is the abstract:

“Snap removal” is a litigation tactic that removes a state court action naming a forum defendant before they are served. Courts are split on the issue for good reason, as the removal statute would normally bar such an action from a federal forum. Those affirming the practice assert the statute’s plain meaning compels removal. Those rejecting it reason that a purely textual construction allows jurisdiction manipulation that is inconsistent with the statute’s purpose.

Many commentators conceive of snap removal as a relatively rare occurrence that does not warrant either judicial or legislative intervention. This Article presents original empirical research and analysis that suggests that claim is incorrect: defendants are using the tactic much more often than its advocates attest. It also argues that we have seen choices like this before—when courts construe statutes in a way that incentivizes gamesmanship and expands federal authority— and the Supreme Court rejected them nearly a century ago in Erie Railroad Co. v. Tompkins.

This Article makes two contributions. First, it presents the first empirical analysis of snap removal since 2014. The data show that the tactic has been used nearly twice as often in subsequent years and that, contrary to what many of its defenders posit, it is used primarily by forum defendants. Second, the Article proposes a solution, based upon lessons learned from the Court’s path to Erie, that accounts for the political economy surrounding snap removal. Existing case law and statutory authority compel courts intervene—as they did with general law after Swift v. Tyson—and correct a bug that places substantial stress on values central to the American legal system.

Phillips & Yoo on the Original Meaning of "High Crimes and Misdemeanors"

James Cleith Phillips (Chapman University, The Dale E. Fowler School of Law) & John Yoo (University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace) have posted Your Fired: The Original Meaning of Presidential Impeachment (Southern California Law Review, Vol. 94, No. 4, 2021) on SSRN.  Here is the abstract:

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of presidential impeachment are again salient. Unlike other constitutional provisions, the Impeachment Clause has generated neither much historical practice nor case law with regard to the removal of a President. The Supreme Court has deemed impeachment the ultimate political question. Thus, the original meaning takes on great weight. Further, previous scholarship has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. This article is the first to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law. Not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established legal term of art in Great Britain. The article then applies these findings to the impeachment of President Trump, provides an in-depth analysis of the proceeding in light of the Constitution’s original meaning, and critiques arguments made on both sides.

Highly recommended.

Barclay on an Economic Approach to Religious Exemptions

Stephanie H. Barclay (Notre Dame Law School) has posted An Economic Approach to Religious Exemptions (Florida Law Review, Forthcoming) on SSRN.  Here is the abstract:

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics.

This Article thus poses a thought experiment: how would normative rhetoric and doctrinal assessments change if one viewed religious externalities through the lens of economic theory? Such a perspective offers three novel normative insights. First, the mere existence of a religiously caused externality does not provide a sufficient justification for government restriction of religious rights, as because externalities are always reciprocal. Second, the government should be cautious about coercing involuntary transactions where idiosyncratic valuation or high transaction costs are involved. And third, exploring outcomes that decrease net harm can highlight government policies that are themselves creating harm. In other contexts, this analysis can force decision-makers to confront more candidly problems of incommensurability, particularly when it comes to dueling claims of dignitary harms.

An economic lens can also provide a positivist account of multiple aspects of a religious exemption doctrinal framework in the context of strict scrutiny. These include balancing competing harms in recognition of reciprocal externalities, requiring the government to have a justification for coercing involuntary transactions in a similar way that property rules would, and assessing carefully whether alternatives exist to avoid harm altogether. Indeed, this latter inquiry closely resembles the type of analysis courts engage in under the “less restrictive alternatives” element of the strict scrutiny analysis.

While economic theory does not provide answers to all of the difficult questions in these religious exemption debates, it can provide a clinical method of analyzing hot-button issues involving seemingly intractable conflicts. And to the extent that harm is a relevant normative consideration, this Article asserts that an under-theorized reliance on harm on just one side of the ledger, advocated under the current third-party harm theories, is a normatively unpersuasive approach.

Highly recommended.

Mendenhall on the Relationship Between the Articles of Confederation & the Constitution

Slade Mendenhall (George Mason University, Department of Economics; George Mason University, Antonin Scalia Law School) has posted Was Washington's First Term Legitimate?: Texas v. White and the Constitutional Convention on SSRN.  Here is the abstract:

When scholars and professors of constitutional law recount the origins of the Union, two conflicting theoretical accounts are often presented. In the first theory, the Constitutional Convention of 1787 was convened, as the Founders presented at the time, under the authority of the Articles of Confederation, with the Constitution created under the authority to amend the Articles. In the alternate theory, the Articles were scrapped altogether, and the Convention proceeded of its own will, with the Constitution emerging as an artifact of political realism. In a landmark Reconstruction Era case, Texas v. White, Justice Salmon P. Chase adopted the former view, in which the Articles are seen as preserved, forming a backbone of continuity stretching forth from the time of their adoption. This article traces the logical implications of these theories, concluding that the Articles of Confederation’s unanimity requirement combined with two states' late ratification of the Constitution would, under Justice Chase's preferred theory, render George Washington’s first term as president, and any legislation it produced, a nullity. Ironically, it concludes, the safer and more conservative theory is one in which the Constitutional Convention is understood as an ultra vires act by the Framers, rebelling first against the English Crown and, second, against themselves.

Mullins on Protected Reasons and Precedent

Rob Mullins (The University of Queensland - T.C. Beirne School of Law) has posted Protected Reasons and Precedential Constraint (Legal Theory, Forthcoming) on SSRN.  Here is the abstract:

According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.

Highly recommended.

Slowinski on Software Protection

Peter R. Slowinski (Max Planck Institute for Innovation and Competition) has posted Rethinking Software Protection (Draft chapter. Forthcoming in: J.-A. Lee, K.-C. Liu, R. M. Hilty (eds.), Artificial Intelligence & Intellectual Property, Oxford, Oxford University Press, 2020, Forthcoming) on SSRN.  Here is the abstract:

The core of artificial intelligence (AI) applications is software of one sort or another. Of course, if software were a mere ingredient, we may have had AI applications already decades ago. After all, it was Allen Touring who in the 1950s developed the first test for AI and concepts surrounding it. But while available data and computing power are important for the recent quantum leap in AI, there would not be any AI without computer programs or software. Therefore, the rise in importance of AI forces us to take — once again — a closer look at software protection through intellectual property (IP) rights, but it also offers us a chance to rethink this protection, and while perhaps not undoing the mistakes of the past, to at least adapt the protection so as not to increase the dysfunctionality that we have come to see in this area of law for the past decades. To be able to establish the best possible way to protect — or not to protect — the software in AI applications, this chapter starts with a short technical description of what AI is, and readers are referred to other chapters in this book for a deeper analysis (1). It continues by identifying those parts of AI applications that constitute software to which legal software protection regimes may be applicable (2), before outlining those protection regimes, namely copyright and patents (3). The core part of the chapter analyses potential issues regarding software protection with respect to AI using specific examples from the fields of evolutionary algorithms and of machine learning (4). Finally, the chapter draws some conclusions regarding the future development of IP regimes with respect to AI (5).

Thro on the Supreme Court & Academic Freedom

William E. Thro (University of Kentucky) has posted Follow the Truth Wherever It May Lead: The Supreme Court’s Truths and Myths of Academic Freedom (University of Daytona Law Review, Vol. 45, No. 2, 2020) on SSRN.  Here is the abstract:

Universities have historically been fierce guardians of intellectual debate and free speech, providing an environment where students can voice ideas and opinions without fear of repercussion.” Quite simply, “knowledge cannot be advanced unless existing claims to knowledge can with freedom be criticized and analyzed.” As the best contemporary statement of academic freedom explains, “the ideas of different members of the University community will often and quite naturally conflict,” but an institution should not “attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” Indeed, “concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some” individuals.

The First Amendment provides broad protection for academic freedom, but every institution, “has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.” “[F]ree speech is bred into the bones of a modern university” but “[u]nless the campus zest for censorship is combatted now, what we have always regarded as a precious inheritance could be eroded beyond recognition and a soft totalitarianism could become the new American norm.”

Of course, defining academic freedom raises other questions about whether academic freedom is universal, or grants greater protections for faculty, or allows the university to defy the government. First, the Chicago Statement emphasizes “all members of the University community [have] the broadest possible latitude to speak, write, listen, challenge, and learn” and “to discuss any problem that presents itself.” Academic freedom is not limited to the faculty, but extends to the students, non-faculty scientists and researchers, and even administrators. If you are part of the university community, you enjoy academic freedom. Second, the American Association of University Professors, while not necessarily denying academic freedom to non-faculty, envisions “enhanced academic freedom” for faculty member. With enhanced academic freedom, “a university professor possesses a constitutional right to determine for himself, without the input of the university (and perhaps even contrary to the university's desires), the subjects of his research, writing, and teaching.” Third, late twentieth century court decisions suggested there was an “institutional academic freedom.” Although public universities are completely free from control by the Church or Synagogue or Mosque or private corporation, state institutions may have rights against its creating State or the National Government. Just as a private university, like any private entity, can resist the government, public universities may be able to resist state or federal government officials.

Yet, the Constitution takes a different approach to the questions of whether academic freedom is universal, or grants greater protections for faculty, or allows the university to defy the government. As recent decisions of the Supreme Court of the United States illustrate, academic freedom is both a constitutional truth and a constitutional myth. First, the Chicago Statement’s notion of academic freedom for all is a constitutional truth for public universities. Regardless of whether you are a student, a staff researcher, a faculty member, or a senior administrator, institutional officials may not punish you for expression, force you to conform, or require you to subsidize causes you oppose. In a sense, liberty has never been greater on a public campus. Second, enhanced academic freedom for faculty members is a constitutional myth. In terms of constitutional rights, faculty members at state universities are no different than ordinary public employees. Third, with respect to a state university and its creating State, institutional academic freedom is a constitutional myth. Yet, as to the relationship between a state university and National Government, institutional academic freedom is a constitutional truth. The purpose of this Article is to demonstrate how the Supreme Court has recognized the constitutional truths and destroyed the constitutional myths of academic freedom. This purpose is accomplished in three parts. Part I explores how the recent Supreme Court decisions in a variety of First Amendment contexts guarantee academic freedom for the entire university community. In particular, it focuses on decisions concerning offensive speech, coercive expression, compelled subsidies, student organizations, public employee free speech effectively set up academic freedom for the entire public university community. Part II explains why the idea of enhanced academic freedom for faculty is a constitutional myth. Faculty members have the same rights as other public employees—no more and no less. At the same time, the Supreme Court’s decision in Garcetti v. Ceballos may diminish constitutional protections for faculty speech in the employment capacity. Part III examines why institutional academic freedom is a constitutional myth at the state level, but a constitutional truth at the federal level.

Dagan & Heller on Specific Performance

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) & Michael Heller (Columbia University - Columbia Law School) have posted Specific Performance on SSRN.  Here is the abstract:

When should specific performance be available for breach of contract? This question has engaged generations of legal economists and philosophers, historians and comparativists. Yet none of these disciplines have provided a persuasive answer. This Article provides a normatively-attractive and conceptually-coherent account. Respect for the autonomy of the promisor’s future self explains why expectation damages are, and should be, the ordinary remedy for contract breach. Also, this same normative commitment to the contracting parties’ autonomy best justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, where it is not. For the most part, the boundaries of specific performance track the common law’s underlying commitment to autonomy. But not entirely. There’s still work to be done, and this Article points the way with concrete doctrinal reforms that can better align specific performance with its animating principles.

Highly recommended.