In the twentieth century, two Nobel-Prize winning economists wrote two seemingly unrelated characterizations of the processes constraining human behavior. One, Ronald Coase, wrote a short article entitled The Nature of the Firm,1 in which he reduced all managerial decision-making to a fundamental choice between making the factors of production, or buying them. This article and the idea of the "make or buy" decision for which it has come to be known, have proven to be among the most seminal in the (...) history of financial economics and organizational behavior. The second economist, Friedrich Hayek, wrote what he thought to be a comprehensive treatment of the approach that ought to be taken to the generation of rules constraining human interaction. This voluminous work, Law, Legislation and Liberty, characterized the creation of legal rules as the product of either spontaneous or planned orders. Hayek argued that spontaneous orders like "law" were more efficient mechanisms for governing human behavior than planned orders like "legislation." 2 This thesis received a lukewarm reception generally, and virtually no reception at all in legal circles. This Article demonstrates that Coase and Hayek were actually making the same observation, albeit in different contexts. Hayek's conception of the two sources of order is, in fact, a more abstract application of Coase's "make or buy" decision. Had Hayek understood his characterization of legal processes to be a variant of Coase's "Theory of the Firm," his ideas may have received more traction. Lawyers, judges, and lawmakers may also have understood some of the implications of Hayek's thesis for constraining legal actors, as well as its applications in current debates on the scope of administrative agency authority, tort reform, or the use of legislative history in litigation. (shrink)

In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court's constitutional jurisprudence. It argues that the tradition's political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of "rational liberty," both as (...) a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: majoritarian democracy, higher law traditionalism, and liberal egalitarianism. (shrink)

Book Chapters Mary Ellen O'Connell & Heinz-Gerhard Justenhoven, Introduction, in Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science 7. Mary Ellen O'Connell, Belief in the Authority of International Law for Peace: A Reflection on Pacem in Terris In 1963, Pope John XXIII's renowned peace encyclical Pacem in Terris offered a practical vision beyond the accepted international policies of his time: normative ideas for reforming the UN aimed at a peaceful conflict resolution in a (...) time of globalization. It calls for renewed commitment to the United Nations and international law. Pope John XXIII explained the role of public authorities within nation states in keeping the peace and working together for the common good. He saw the need for similar authority for the international community. Fifty years later, the authors critically debate the ideas for 'global political authority' and global law from their respective perspectives: theology, philosophy, international law, economics, and political science. (shrink)

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in (...) the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory. (shrink)

Is the survival of constitutional democracy in America at serious risk? Given the actions of the Trump administration, and given the decline of democracy and concomitant rise of authoritarianism the world over, there is genuine cause for alarm. In light of these fears, it is worth remembering that the authors of The Federalist Papers were notably pessimistic about the survival chances of republican government. To what extent have their constitutional design innovations contributed to present woes, and conversely, to what extent (...) will the Constitution ensure the survival of democracy? This Essay argues that while the design of the Constitution is both helpful and harmful, much will ultimately turn on the political dimension. In particular, this Essay claims that the republic will survive only if the ongoing practices of democracy re-affirm its central values. But there are significant challenges to maintaining constitutional democracy. In addition to President Trump in the White House, current challenges include the decline in the democratic norms of civility and compromise, the rise of ideological warfare and hyperpartisanship, and the ever-deepening polarization between opposing camps—not only in government but also in the public at large. In the coming years, the continued vigilance and resistance of individuals and institutions will be crucially important to ensure the survival of constitutional democracy in America. (shrink)

The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can (...) plausibly claim to address the problems of oppression, tribalism, and physical and economic security. Along these dimensions, the advantages of liberal constitutional democracy over the alternatives of social democracy of the type seen in Scandinavia, and bureaucratic authoritarianism of the type seen in parts of Asia, are not self-evident. Within Asia alone, seemingly functional alternatives to liberal constitutional democracy run the gamut from illiberal nondemocracy in China, to liberal one-party rule in Japan, to illiberal constitutional democracy in Singapore, to liberal constitutional nondemocracy in Hong Kong, to hereditary monarchy in Bhutan. (shrink)

High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism—for instance an amendment restricting political speech or establishing a (...) national religion—the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy. In this Article, I sketch eight strategies the Court could deploy in order to defend American constitutional democracy—and to make itself truly supreme by immunizing its judgments from reversal by constitutional amendment. (shrink)

Sometimes constitutions fail. The unprecedented election of Donald Trump, a populist insurgent who lacks the prior political experience or military service of all presidents before him, is such a sharp break in American historical experience that it raises questions as to whether something is deeply amiss with the constitutional order. Constitutional failure is not uncommon. A path-breaking global study of national constitutions shows that on average, they last only nineteen years. The U.S. Constitution is an uncommon outlier and, as such, (...) is accounted by many a long-running success story. But could a bell be tolling for American constitutionalism? In this Essay, I assess the meaning of Trump’s shocking rise for the future of our constitutional order. The shock, of course, was not the election of a Republican president. There have been many Republican presidents since Lincoln, each making their own distinctive contribution to the American tradition. Yet, there are good reasons to think this time around is different. The efficacy and, perhaps, stability of our constitutional order are in question, and we should try to understand why. (shrink)

One of the central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.

A great good promoted by a well constructed legal system is the protection and promotion of character. Many other purposes prove to be justifiable, if at all, based on their instrumentality to this good.When guided by this thesis, jurisprudence brings the discussion of law – what law is and what law ought to be – into constant conversation with anthropology: the perennial inquiry which our species conducts into the nature of the person.

The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show that theorists (...) can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and that the participants in a legal system themselves maintain and evaluate models of this sort. Understanding law this way clarifies numerous problems ranging from pluralism to legal interpretation. This work emphasizes four major points of the theory: It identifies law as the conceptual side of cooperation and, thus, the means of coordinating decisionmaking. It derives from human cooperation a picture of legal systems as a network of institutions exchanging information and maintaining their own rules of recognition and decision. It advances the thesis that cooperation and its associated legal system arise when individuals create institution-information models, identify the models used by others, and accept the use of those models. Finally, it provides a standard representation of institutions, their communications, and their reasoning. This analysis reveals that institutional agreement and disagreement occur at discrete levels.Together, these elements yield a theory of legal systems that grounds jurisprudence in the study of the human conceptual system. It sheds new light on the problem of theoretical disagreement, otherwise puzzling problems of pluralism, and the connection between law and morality. (shrink)

There is no more important question in thinking about life-and actually living-in political community than whether it is to be permeated by, and purposefully oriented around, the main truths about human flourishing. It is at least paradoxical that, precisely when the state and its law and political life are shaping people's lives more and more, the professed roots of all this influence are growing thinner, more shallow. Lawmakers who profess and in many cases even think they should be "neutral" about (...) values are more involved with how persons' lives go than, perhaps, ever before. Of course, any community which has lost faith in the truth about human wellbeing is going to be quite befuddled by the question. But the perennial centrality of the question about truth and politics can be obscured for understandable reasons. One is the immediate urgency of so many practical challenges, such as settling the defense or state budget, protecting against terrorist attack, or deciding what to do about a nuclear-armed North Korea. Attention to the fundamental question is attenuated, too, by focus upon diffuse problems which affect nearly everyone daily, such as getting good healthcare coverage or creating jobs. Significant public debates about moral issues affecting policy are still common. But they tend to be episodic, and wary of getting down to foundations. When Americans argue today about immigration policy and capital punishment, for instance, they rely upon profound ethical beliefs. All too often, however, they link these commitments not to the objective moral truth at the heart of the matter, but instead to past practices, or to communal identity as a matter of fact who we are!"). (shrink)

As captivating as paradigm-changing "radical" innovations may be, “sedimentary”, or incremental, innovation – incremental improvements based on imitation, tweaking, bricolage and diffusion – are in fact the main way in which innovation actually develops. In finance, sedimentary innovation is shaped by forces including structural and social networks, a strong first mover advantage, and collective action problems. This piece, which is Chapter 8 in a forthcoming book that considers financial innovation as a regulatory challenge, examines sedimentary innovation in particular. Like innovation (...) generally, sedimentary innovation can profoundly undermine regulation across time. It can bury structures designed to contain it and can transform the landscape, even while not seeming to be doing much at all. Sedimentary innovation is conceptually linked to flexible regulation, but also presents challenges for it. For example, humans struggle to recognize sedimentary change in real time, due among other things to cognitive limitations and bounded rationality. Regulatory boundary and coordination problems also pose unique problems in this context. The chapter offers some regulatory responses to the challenges posed by sedimentary innovation, including improving analytic capacity, recognizing network effects and predictable cognitive limits, and building in institutional contrarians and system “breakers”. (shrink)

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis for an (...) interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech. Habermas' theory takes as its point of departure the speech act theory developed through contemporary analytic philosophy and linguistics. The central theme of speech act theory is that speech is action; communication coordinates individual behavior through achieving rational understanding. An important corollary is the proposition that communication is intersubjective; speech acts involve both speakers and listeners. In addition, the theory of communicative action makes a distinction between communicative action-oriented to the coordination of behavior through rational agreement-and strategic behavior-the use of speech to manipulate, coerce, or deceive. I argue that a theory of free speech can incorporate this distinction to mark the boundaries of the right to free speech: freedom of speech is freedom to engage in communicative action, not strategic action. Another component of Habermas' theory is the ideal speech situation, in which rational agreement may be reached because distorting factors are excluded; this ideal situation serves as the basis of a principle of equality of communicative opportunity that can give the freedom of speech its fundamental content. Habermas' theory of communicative action provides the basis for my reinterpretation of the first amendment freedom of speech as the freedom of communicative action. This Article has two aims. My first aim is to develop a theory of the meaning of the first amendment from the theory of communicative action. In pursuit of this first goal, the Article assumes a perspective that is internal to the practice of American constitutional law. I argue that Habermas' theory has substantial power to explain and justify first amendment doctrine. Indeed, it is my view that a theory of freedom of speech based on the theory of communicative action, more so than any other theory, provides the best justification for the first amendment while simultaneously providing the best fit with the existing case law. In addition to the development of a theory of the first amendment, this Article has a second aim: From the point of view of the practice of social theory, the current Article is a "thought experiment" designed to test and elaborate Habermas' theory of communicative action. I explore various objections to and ambiguities in the theory of communicative action by taking up the attitude of a participant in the practice of legal interpretation who adopts the theory of communicative action as a practical principle for institutionalization of discourse in the public sphere. It is my hope that this thought experiment will have value in the enterprise of understanding, clarifying, and extending the theory of communicative action. For example, this Article responds to the suggestion that the theory of communicative action should be reformulated as a theory of institutionalized discourse "in the public sphere of a participatory democracy." Part II of this Article begins with a hermeneutic approach to the problem of interpreting the first amendment. Part III explores and criticizes existing theories of the freedom of expression. The theory of communicative action is explicated in Part IV; the implications of that theory for the freedom of speech are explored in Part V. Finally, Part VI applies the results to specific problems in first amendment doctrine, and Part VII draws some conclusions about the implications of this exercise for both first amendment doctrine and the theory of communicative action. (shrink)

This essay explores two ideas that have recently played an important role in discourse about the American constitutional order. The first idea has emerged from the revival of civic republicanism. The republican revival has focused our attention on the classical conception of civic virtue. Our basic social arrangements ought to nourish a citizenry with the characteristics of mind and will that promote human flourishing. The second idea, expressed in critical race theory and feminist jurisprudence, is that we have an obligation (...) as a society and as scholars to attend to excluded voices. The juxtaposition of these two themes offers an opportunity to explore the relationship between classical philosophy and the American constitutional order. Civic republicanism is a complex set of ideas that has developed over the course of two millennia; understanding the republican revival requires a recognition that there are many strands in republican thought-that republicanism is itself a contested concept. In order to untangle the strands, I will examine classical moral and political philosophy, especially the work of Aristotle and Machiavelli, in relation to the work of the architects of the republican revival, including Frank Michelman, Suzanna Sherry, Cass Sunstein, and others. (shrink)

The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool (...) calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. In my comments this morning, however, I want to pose a question that I believe has been neglected by law and emotions scholars, and I will urge that we center it. To summarize my criticism: Law and Emotions scholars have looked at emotion’s impact on law and on our understanding of justice, and at law’s impact on emotional life, and have done so to great effect. What they, or we, haven’t much to date investigated, however, are the emotions law produces, or authors, or sires, or births, or fathers – the emotions that law itself generates, rather than the emotions that affect law or the emotions that law affects. (shrink)

This article offers an interpretation of the problems addressed by and the eventual purpose of the United States government. Simultaneously, it seeks to analyze and explain the continued three-part structure of the United States federal government as outlined in the Constitution. Subsequently I define the three parts of the federal government—judiciary, executive, and legislative—as explained through the lens of the Platonic paradigm of,, and extrapolated from Plato’s dialogues. First, the article establishes Plato’s theory of the three-part Platonic soul as a (...) major premise, as in a syllogism. Second, the article lays out the generally accepted division of the U.S. Constitution as creating three parts to the federal government as a minor premise. Third, the syllogism completes by weaving in the major premise of Plato’s soul into the three parts of the United States federal government. This third step of application suggests possible future evolution of the structure. This article fits into the wider issue of the functionally efficient and naturally adaptive structure of the U.S. federal government. Providing a historical and philosophical context to this structural analysis will serve as a framework for future research on the operation of the federal government. When the branches of the federal government step out of their roles, the balance of the structure of the federal government becomes disrupted occurring in liminal periods of paradigmatic change. (shrink)

Subsidiarity, i.e., “the principle of subsidiarity,” i.e., “the principle of subsidiary function/responsibility,” i.e., the principle that it is unjust for a higher authority to usurp the self-governing authority that lower authorities, acting in the service of their own members, rightly have over those members, is a presumptive and defeasible, not an absolute, principle. But it excludes any general policy or aim of assuming the control or managerial direction of lower groups. Its deepest rationale is the intrinsic desirability of self-direction, a (...) good that is to be favored and respected even at the expense of some efficiency in the pursuit of other goods. Though arising out of Aristotelean moral and political theory, it denies or strongly disambiguates a cardinal principle of Aristotelean political theory. It is reflected in the work of Aquinas, Taparelli, Mill and Maitland, before its articulation by Pius XI. (shrink)

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, (...) the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees the droit d’auteur. Under the commercial Anglo-American approach, the protection of a creation is not a natural right, but instead is expressed in the form of economic incentive granting the creator a right to copy. The United States Constitution supports the latter approach in its Copyright Clause. This clause emphasizes the importance of limiting the time that the author has an exclusive right to the creation, in order to “promote the progress of science and useful arts.” The United States Supreme Court has also established support for the utilitarian economic approach in its decisions. Despite this, some scholars are calling against the economic approach and for the need to restore natural law theory in American copyright. This paper argues that the efforts to incorporate natural law theory in American copyright law would be undesirable, and that natural law concepts are incompatible with existing American copyright law. The two theories and their origins will be examined in order to show this, as well as the concept and scope of the fair use doctrine in American law and the Continental system. (shrink)

This article looks at the capital sentencer's decision: Whether a death-eligible defendant will in fact receive the death sentence. Based in part on an examination of Jewish law and philosophy, Professor Levine identifies three particular areas in which it can be said that the Supreme Court requires the capital sentencer to "play God." First, capital sentencers are asked to ascertain the degree of a defendant's culpability by looking at factors that affect free will and victim impact evidence, implicating moral luck. (...) Capital sentencers are also required to determine a person's total moral worth by considering character evidence. Finally, the Supreme Court has upheld the practice of allowing capital sentencers to consider predictions of future dangerousness despite the unreliability of predictions. In each case, Jewish law and world-view acknowledge the inadequacy of human decision and reserve these judgments for God alone. The Supreme Court's response to such inescapable difficulty and danger of error appears, in effect, to ignore the absolute difference between the death penalty and other forms of punishment. (shrink)

Professor Levine examines the atonement model and its relevance to American law. He outlines and explains the necessary steps by the wrongdoer for atonement: repentance, apology, reparation and penance. The wronged party then has the obligation of reconciliation for the process to be complete. Despite the prominent position it has held for millennia in religious thinking, the atonement model is relatively new to American legal theory. Professor Stephen Garvey's attempt to offer a systematic depiction and analysis of the process of (...) atonement and its possible relevance to American law appears to represent the most extensive effort to date. Any application of a theory of atonement to the American legal system, however, will encounter a number of problems and objections. In a time where the prevailing models of punishment: deterrence, retribution, and restoration fall short, the model of atonement provides a new theory of punishment for American legal thought to consider in the future. (shrink)

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as (...) long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These problems are at the core of recognition and enforcement of foreign-country judgments. These foreign judgments can be classified into two categories - money-judgments, and non-money judgments. This paper reviews the law applicable to the recognition of foreign non-money judgments, assesses the particular problems encountered by such judgments with regard to their recognition abroad, and defines their needs with regards to further acceptance in foreign legal systems. This paper also proposes a review of current alternatives for reform in the field of foreign non-money judgments to heighten the recognition and enforcement of foreign non-money judgments in a defined system. A comparative analysis of the American and French practices of recognition and enforcement of foreign-country judgments will be undertaken. While the American system’s full faith and credit clause of the Constitution lends a favorable opinion towards recognition of foreign-country judgments, the French system restricts recognition of these foreign judgments. These different approaches to foreign-country judgments highlight the difficulties arising from incompatibilities in the laws, rules of procedures, and legal philosophies of the systems at hand. (shrink)

The right to privacy is the centerpiece of modern liberal constitutional thought in the United States. But liberals rarely invoke “the Founding” to justify this right, as if conceding that the right to privacy was somehow a radical departure from “original meaning,” perhaps pulled out of the hat by “activist” judges taking great interpretive liberties with the constitutional text. Far from being an unorthodox and modern invention, I argue here that privacy is a principle grounded in the very architecture of (...) the Constitution as enumerated in its Articles, perhaps even more so than in particular sections of the Bill of Rights, as is currently understood. More specifically, modern liberalism’s articulation of the right to privacy in the twentieth century against state legislative leviathans bears a family resemblance to three principles in the Federalists’ political theory, which introduced the new federalism, the new liberalism, and the new republicanism, which in turn are embedded in three interrelated structural innovations that would presage the modern turn to privacy: the establishment of a stronger union would nationalize rights and introduce the radical idea that the federal government was not antithetical to liberty but would better guarantee it ; the creation of a large republic would acknowledge that fellow citizens, even more so than kings, can threaten our liberties ; and finally, the introduction of the separation of powers would reverse the classical commitment to homogeneity and affirm instead the virtue of heterogeneity in understanding and constituting the republican commonweal. (shrink)

The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to (...) the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish. (shrink)

The author addresses issues raised by commentators on his book, Philosophy of Law.

There is a certain allure to the idea that cities allow a person to both feel at home and like a stranger in the same place. That one can know the streets and shops, avenues and alleys, while also going days without being recognized. But as elites fill cities with “smart” technologies—turning them into platforms for the “Internet of Things” : sensors and computation embedded within physical objects that then connect, communicate, and/or transmit information with or between each other through (...) the Internet—there is little escape from a seamless web of surveillance and power. This paper will outline a social theory of the “smart city” by developing our Deleuzian concept of the “spectrum of control.” We present two illustrative examples: biometric surveillance as a form of monitoring, and automated policing as a particularly brutal and exacting form of manipulation. We conclude by offering normative guidelines for governance of the pervasive surveillance and control mechanisms that constitute an emerging critical infrastructure of the “smart city.”. (shrink)

Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding, this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority (...) of rule makers is never peremptory in a binary as distinct from presumptive and defeasible sense. Deliberation towards the exercise or acceptance of authority is never primarily a matter of prediction or predictability of action, and is always a matter, rather, of purpose, and of creation by intelligent design than of non-purposive evolution. Those who exercise authority have no right to be obeyed, and the persons with the right correlative to a duty of compliance are those for whose benefit the rule or order was made and/or those who comply with it. The authority to make rules is a responsibility to serve the true interests of a community to which those subject to the rule belong. (shrink)

Simple legal jobs are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future. Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of (...) time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. Similarly, disputes that now seem easy, because one party is so clearly in the right, may be rendered hard to automate by new rules that give now disadvantaged parties new rights. By explaining how each of these reversals could arise, this Essay combines technical and sociological analyses of the future of legal automation. We conclude that the future of artificial intelligence in law is more open ended than most commentators suggest. (shrink)

This Symposium Article argues that the board-controlled corporation can be understood as a legal innovation that historically has functioned as a means of transferring wealth forward and sometimes backward through time, for the benefit of present and future generations. In this fashion the board-controlled corporation promotes both intergenerational equity and intergenerational efficiency. Logic and evidence each suggest, however, that the modern embrace of “shareholder value” as the only corporate objective and “shareholder democracy” as the ideal of corporate governance is damaging (...) the corporate form’s ability to serve this economically and ethically important function. (shrink)

My aim in what follows is to employ N.T. Wright’s powerful and provocative analysis of Paul’s political gospel as a critical perspective on the foundational claims of the Great Separation. Because the very possibility of political theology is disputed in many quarters, I begin in Part I with a defense of political theology as critical theory. In Part II, I turn to Paul’s political gospel, tracing Wright’s reconstruction of its central terms, including the Pauline critique of empire. In Part III, (...) I explore—briefly—the affirmative political vision Pauline theology makes possible, with particular focus on that theology’s unique form of political dualism. Finally, Part IV takes up the clash between Pauline theology and modern liberalism on the critical issue of sovereignty. (shrink)

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the (...) application of foreign law. However, these outcomes are problematic because parties are denied access to court or have their rights and responsibilities determined pursuant to the incorrect law. This Article offers an exposition of lexical meaning to explain the source of these oppositional trends and to illuminate possible solutions. Legal words and ideas transcend geographic, social, and cultural boundaries. For this reason, the words of another legal system look familiar and, thus, appear knowable to an outsider. Yet autonomous national legal systems tend to tailor the meanings of these shared words for idiosyncratic purposes. Thus, ironically even paradoxically the more commonly a word is used, the less predictable is its meaning. This differentiation of meanings makes actual knowledge of the foreign law difficult to achieve. As a framework for examining this phenomenon, this Article demonstrates that the common meaning of a word is a limited resource. The common meaning of a word erodes when legal systems assign a new meaning to a shared word. Idiosyncratic meanings are useful and generative, but they also introduce an important negative externality because the common meaning of a word is essentially the starting point for measuring the meaning of that word in a foreign system. The more robust the common meaning, the lower the measurement costs. The prototypical solutions to common-pool problems privatization and regulation are infeasible here. Moreover, ubiquitous efforts to unify, approximate, or harmonize laws tend to exacerbate the problem rather than help solve it. We could drop the pretense that we are able to understand foreign law and eliminate the demand for it. Alternatively, if the doctrines are going to presume familiarity with foreign law, we must address the supply side and ensure that courts are, in fact, better able to understand the idiosyncracies of foreign law. (shrink)

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.” Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general (...) principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is “perhaps better described as the law of ‘human rights in armed conflicts’”? To answer yes, I argue, amounts to a reinterpretation of IHL that drifts far from its history. This reinterpretation is what I label human rights thinking . In its origins, IHL was not designed to protect human dignity, but to reduce human suffering; it was a form of disaster relief. Human rights law, by contrast, originated as a blueprint for the kind of peacetime societies that would no longer plunge the world into what the UN Charter calls the “untold sorrow” of war. Nevertheless, law changes. Perhaps the nature of IHL has evolved over time in the direction of human rights thinking, and should evolve that way. That is the view I defend-–with some qualifications-–in the final sections of this essay. First, I explore the very different genealogies of IHL and human rights law, and explain how human rights thinking migrated into IHL. I attribute the migration to international criminal law, military occupations, and reactions to the U.S. war on terrorism. In the final sections, I explore two ways human rights thinking can be pursued in wars. One of them, I will argue, overplays and overestimates what human rights thinking can accomplish. It does so by, in effect, willing away fundamental differences between war and peace. The other is an approach that I have defended for more than three decades. It consists, at bottom, of taking a civilian’s-eye view of the disasters of war and reading the law accordingly-–recognizing, one might say, that Mother Courage and her children matter just as much to the law of war as Henry V and his band of brothers. (shrink)

Analytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general philosophy; analytic jurisprudence studies only (...) time-­‐slice legal systems, rather than legal systems unfolding in history. He argues that a time-­‐slice legal system is incapable of explaining the normativity of law. Postema recommends an approach to jurisprudence based on sociability with other disciplines, including its own history and general philosophy; he also recommends an approach grounded in synechism – Peirce’s label for the attempt to find continuities between seemingly-­‐discontinuous phenomena. My comments are largely sympathetic to Postema. I show that his argument about the normativity of law makes the most sense if we embed it in a “meaning as use” theory of legal language and its conceptual content. I am more skeptical of synechism, which on its face rejects a perfectly valid and valuable historiography focused on discontinuity – the kind of history written by Kuhn, Foucault, and Marx. I show that Peirce’s argument for synechism fails, whereas Postema’s version of synechism broadens the notion of continuity to include what might ordinarily be thought of as discontinuities. On the one hand, that rescues Postema from the charge of ruling out valid approaches to history on a priori grounds; on the other, it makes Postema’s version of synechism less distinctive than he supposes. (shrink)

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and (...) foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the superficial categories of holding and dictum. Instead, it should reflect deeper normative commitments that define the nature of adjudication within American legal culture. The account that emerges is one in which the scope of precedent is inextricably linked to interpretive theory and constitutional understandings. Divergent methods of interpretation, from originalism to common law constitutionalism and beyond, carry distinctive implications for describing a precedent’s constraining effect. So, too, do various methods of interpretation in the statutory and common law contexts. Ultimately, what should determine the scope of precedent is the set of premises—regarding the judicial role, the separation of powers, and the relevance of history, morality, and policy—that informs a judge’s methodological choices. (shrink)

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake. The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the (...) values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster respect for competing norms and promote affirmative values rather than simple suppression of conflict. In particular, the article argues for adoption of three premises, all of which contribute new insights to this continuing debate: that obedience to antidiscrimination law is not inherently expressive; that disagreement with antidiscrimination law must be fully protected; and that the framing of antidiscrimination norms should be de-moralized. Some scholars believe that pluralism requires treating religious authority as equivalent to law. This article argues that, in situations such as the Georgetown case, when seemingly irreconcilable value systems collide, the proper role of courts in a pluralistic democracy is to provide the secular authority that ultimately resolves such a case, if not the volatile cultural dispute underlying it. (shrink)

Compares formalism and instrumentalism and evaluates their general claims. “Part of what is meant by formalism is this: The law provides sufficient basis for deciding any case that arises. There are no “gaps” within the law, and there is but one sound legal decision for each case.” The formalist also holds that law is traceable to an authoritative source. “…sound legal decisions can be justified as the conclusions of valid deductive syllogisms. Because law is believed to be complete and univocal, (...) all cases that arise can in principle be decided in this way. This is the formalistic model for legal justifications.” Moderate instrumentalism also accepts the notion that the law has sources and that past political events can determine what the law is for the future. However, they also maintain that the law has gaps. “Moderate instrumentalists and positivists alike embrace a source-based conception of the law as well as a formalistic model for legal justification; partly because of this combination, they reject the formalistic notion that law is complete and univocal. Instrumentalists, like positivists, emphasize that because the interpretation of authoritative legal texts and their application to cases are often controversial, reasonable arguments are often possible on both sides of a legal issue. Since there are no hard and fast rules for adjudicating such disputes, positivists conclude that law in such cases is indeterminate – not yet fully formed, needing judicial legislation. Instrumentalists most likely have a similar view of the law. They assume that law is determinate on an issue at a given time only if its identification and application are, roughly speaking, mechanical.” [Must keep in mind the distinction between determinate and conclusive.] “The instrumentalists make the decisive assumption that law is not determinate if it is controversial, for law is thought to be gappy and indeterminate only when reasonable legal arguments are possible on both sides of a legal question…This reasoning exposes a more fundamental assumption of formalism, instrumentalism, and positivism: Nondeductive reasoning is incapable of adequately establishing any conclusion.” This, though, is a radical thesis given that all scientific hypotheses are unproven deductively. [But it might be a claim restricted to legal reasoning. Moreover, it seems legitimate to wonder whether legal reasoning is really comparable to offering scientific hypotheses.] We should, however, reject the mechanistic model of legal and judicial reasoning that assumes a given major premise captured in authoritative legal texts that deductively produces conclusions in a situation to which a law applies. Take a law that requires some activity to be “economically efficient” but fails to specify economic efficiency. The text assumes that there is such a thing as economic efficiency, that some activities are so efficient and others not, that some judgments about economic efficiency are true and others false, and that the criteria of efficiency are determinable in principle. “[I]f there really are reasons for preferring one conception of economic efficiency to others in a given context, the assumption of the law in question would be true; if the court correctly identifies and applies that conception, it is simply carrying out its legal mandate. It would be faithful to the text, but it would not be limited to the four corners of the text and its literal implications.” Thus, a judge may employ non-mechanical reasoning in arriving at the meaning of legal requirements such as economic efficiency. Moral reasons are constitutive of the law. A judge must, in deciding the appropriate conc ption of economic efficiency, offer reasons for preferring that conception in the given context. (shrink)

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions (...) and distinctions between jurisprudence, legal philosophy and legal theory , on the one hand, and its relationship to methodology, on the other hand; later by pointing out the main methodologies available to legal theories, following the distinctions between descriptive and prescriptive or normative, on one side, and, general and particular, on the other; then by revisiting Dworkin’s model, which he characterizes as constructive, interpretive , evaluative and integrative; and, concludes by reconsidering in this light the one right answer thesis. (shrink)

Review of Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience by Michael S. Pardo and Dennis Patterson, published by Oxford University Press.

Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically (...) not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, his work has made his mark on psychology, economics, and political science. But, surprisingly, one of his most subversive, and important, articles, Moral Heuristics, is directed primarily at philosophers. Sunstein's Moral Heuristics approaches the gates of philosophical discourse like a Trojan Horse. The article's title uses the well-known jargon of psychology. This is no surprise, as the piece is published in a psychological journal (albeit one known for sometimes engaging in philosophical inquiry). It thus seems that the piece will be another of his many valuable conversions of psychological research into legal concepts. Sunstein is well known for mining out nuggets of social and cognitive psychology that have been previously ignored by legal scholars and demonstrating that an understanding of these principles is actually critical for understanding some area of law. But Moral Heuristics is not such a piece. It brings some psychological research to bear on legal issues, but the piece is more ambitious than that. It provides a new way for both psychologists and legal scholars to think about the concept of heuristics. It then uses this new approach to challenge the basic epistemological assumptions of contemporary moral philosophy. The basic thesis of Moral Heuristics is that people rely on simple habits of the mind when thinking about moral issues. As in many areas of life, they do not adhere to principles of deductive logic. They resist relying on broad-based optimization strategies (such as cost-benefit analysis) as a means of addressing hard moral questions in favor of simple rules of thumb. For example, Sunstein argues that people avoid making decisions that they know will result in the death of another person. This is a good principle to follow, of course, but blind application of it can lead to paradox because some fatalities are more invisible than others. The principle can produce condemnation of those who account for less visible, indirect fatalities, as happens in cost-benefit analysis. Cost-benefit analysis makes indirect fatalities transparent, thereby making those who rely on it seem callous, even if they are trying to minimize the total fatality rate. But Sunstein's admonition against using overly simple habits of mind to assess complex choices in modern society is not what is novel about this paper. Many of his papers engage in that kind of exposition. What sets this paper apart is how he uses the concept of heuristics. In this paper, Sunstein uses the idea of mental shortcuts in a highly contextual way. He seems, at times, to be inventing new heuristics. New to this paper are terms such as the "'cold-heart heuristic'" and the "'do not play God'" heuristic. And obviously the 'Justice Antonin Scalia heuristic"' is not one psychologists would have heard before. Implicit in this move is that Sunstein must be arguing that the mental shortcuts that people are taking are highly specific. They are not global habits of mind that people use in all places to suit all purposes. Rather, people seize upon these heuristics to solve certain problems. That is a novel move and one that nicely embraces some of the criticisms levied against the concept of heuristics, both in psychology and in law, and shows them to be modifications, rather than criticisms. The second novel claim of the paper is its main target. In asserting that the psychological concept of heuristics speaks directly to the epistemology of moral philosophy, Sunstein attacks the foundations of contemporary moral philosophy. Sunstein argues that people reject deductive logic in their approach to statistical and probabilistic reasoning, preferring instead to rely on heuristics that are often inconsistent with logic. Consequently, creating a workable, internally coherent mathematics based on people's intuitions about numbers would be a foolish undertaking. Sunstein argues that the same is true for moral philosophy. Intuitions about moral issues, he contends, are no more apt to be coherent than intuitions about probability theory. Therefore, founding a normative theory of moral philosophy upon intuition is just as misguided as founding mathematics on intuition. And yet, that is exactly what contemporary moral philosophers undertake. I flesh out these issues in this paper. First, I discuss how Sunstein's approach to heuristics differs from what many psychologists adopt and how this new approach addresses some of the criticism levied at the heuristics and biases literature. Second, I review how this new approach undergirds Sunstein's critique of moral philosophy. (shrink)

Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about (...) the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation. Sections 3.17 and 3.18 make some scholars nervous because they substitute individual consent to a settlement for individual consent to a process. But the process itself plays a vital function; when process is coercive or consent is tainted those flaws undermine systemic legitimacy and can affect subsequent compliance with the outcome. To be sure, process should enable the enforcement of substantive laws. Yet, we can't achieve justice solely through maximizing welfare or ensuring that plaintiffs have free choice. Rather, process can enable plaintiffs to reason together about the right thing to do and give rise to moral obligations that help balance the uneasy union between the collective and the individual. (shrink)

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules (...) play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between "communicative content" (the linguistic meaning communicated by a legal text in context) and "legal content" (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules. (shrink)

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste. Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for (...) future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or a combination of these values. After identifying waste, the law seeks to eliminate it via targeted anti-waste provisions, which follow one of three approaches. First, “usage-veto” measures empower selected parties to halt perceived wasteful changes to resource uses. Second, “market-facilitating” measures prevent economic waste by encouraging and correcting markets. Third, “sustainability” measures proscribe wasteful overconsumption of resources fundamental to human and ecosystem flourishing. Through this framework, the Article synthesizes seemingly disparate property and resource doctrines into a coherent legal approach to the idea of waste. This overarching understanding of legal waste explains how individual anti-waste provisions originate and operate. Further, the waste framework serves as a practical tool for analyzing whether anti-waste laws remain in touch with current resource contexts and societal preferences. Finally, it offers theoretical insight about how anti-waste provisions work cumulatively to inject a necessary adaptability into property law. (shrink)

This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is seriously investigating the social and (...) economic background of legal rules and their consequences through clinical legal education, which attempts to provide a real or simulated laboratory experience for law students. The most pervasive change, however, may be the breaking down of traditional artificial and arbitrary classifications of subject matter, which attempt to provide the advanced student a tentative method for organizing his or her knowledge about the legal system. Therefore, comparative law courses in the law school curriculum have surfaced in an attempt to inspire students to think creatively about legal problems by providing new insights into the legal system. To illustrate their support of this approach, the authors discuss their experience with creating and teaching a comparative law course at Boston College Law School. The Essay provides support for existing literature surrounding comparative law in legal education while illustrating its importance to law school curriculums throughout the United States. (shrink)

The natural experiments of history present an opportunity to test Hobbes' view of government and law as the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet the wide variety of situations show common patterns among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and (...) a commitment to fairness and justice, although both can be subverted in certain predictable ways. The absent-law situations also illustrate the dependence of social order and cooperation on a group's commitment to justice. The insights from the absent-law situations have implication for several modern criminal justice issues, including the appropriate distributive principle for criminal liability and punishment, restorative justice programs, the movement to promote non-incarcerative sanctions, transitional justice and truth commissions, the use-of-force rules under international law, the procedures for fairness in criminal adjudication, and crime-control policies in fighting organized crime and terrorism. (shrink)