Saturday, March 17, 2018

Stormy Daniels and New York Times Co. v. Sullivan

Mark Graber

Stormy Daniels’ effort to talk about her affair with Donald Trump is better protected by the First Amendment than contract law.  The Supreme Court in New York Times Co. v. Sullivan (1964) limited the power of states to pass tort laws that chill or suppress speech about the qualities of public officials or candidates for public office.  The specific decision in Sullivan was that the constitutional interest in vigorous debate over the vices and virtues of public officials constitutionally outweighs the interest of those officials in suppressing negligently false speech about themselves. If the Constitution prohibits state tort laws from sanctioning negligently false statements about public officials or candidates for public office, then the same First Amendment plainly prohibits state contract law from sanctioning true statements about public officials and candidates for public office. Public officials and candidates for office should no more be able to suppress criticism of their behavior through non-disclosure agreements than they are through libel laws.

Sullivan provides Stormy Daniels with a strong constitutional foundation for having her non-disclosure agreement with Donald Trump or Trump’s representatives declared judicially unenforceable.  The Supreme Court has repeatedly declared that the First Amendment primarily protects the social interest in a robust marketplace of ideas.  The Roberts Court protects the First Amendment rights of corporations because they provide ideas and information to the public, not because corporations in themselves have political rights.  State laws that sanction speech subject to a non-disclosure agreement and state laws that sanction negligently false statements both chill speech. The public interest in learning about the information being suppressed by non-disclosure agreements is clearly as great, if not greater, than the public interest in obtaining negligently false statements.  As important, no public interest supports allowing public officials or candidates for public office to buy off persons with potentially damaging information.

Contracts against public policy are void, even when no one bargained for an illegal action.  Common law courts refused to enforce promises not to marry.  The Supreme Court of the United States in Shelley v. Kraemer (1948) refused to enforce an agreement among white homeowners never sell to a person of color.  Sullivan declares that public policy in the United States encourages speech about public officials and candidates for public office.  Non-disclosure agreements are inconsistent with the policy when they prevent speech on matters of vital public interest solely because that speech may place powerful people in a bad light. The alternative would allow the most affluent citizens, who already have the right to buy as much favorable speech as they wish, to buy the right to silence as much unfavorable speech as they desire. 

UPDATE: Daniel Solove and Neil Richards published an excellent piece in the 1999 Columbia Law Review on when ordinary tort and contract law should be allowed to restrict speech.  They have thought far more seriously about the subject than I have (or intend to do).  I nevertheless confess that I would fine-tune their analysis of non-disclosure agreements.  I think there is a public interest in having certain conversations remain confidential, so the First Amendment does not trump what Trump tells his doctor or lawyer (or as in a Supreme Court case, a journalistic promise of confidentiality in order to receive certain information.  But I think a there is a real First Amendment problem in allowing persons to use non-disclosure agreements to buy up critical speech.  

Friday, March 16, 2018

National Conference of Constitutional Law Scholars

Stephen Griffin

Inspired by Larry Solum's efforts at live blogging scholarly conferences, I am in Tucson at the inaugural meeting of the National Conference of Constitutional Law Scholars.  This is a very good idea put together jointly by Andrew Coan (Arizona), David Schwartz (Wisconsin), and Brad Snyder (Georgetown) and funded by the University of Arizona's Rehnquist Center.  The papers I mention are available (I assume) from Andrew.  It's a great conference, with an interesting mix of scholars at different stages of their careers.  I was just listening to Aziz Huq presenting a paper on "Apparent Fault," followed by Victoria Nourse talking up a terrific paper, "Reclaiming the Constitutional Text from Originalism."  It's part of a book she is working on which I can't wait to read.  Jamal Greene is commenting.

Previously this morning, we heard a wonderful set of papers on the political process, including Tabatha Abu El-Haj's "Networking the Party," on thinking about political parties as associations, Aaron Tang rethinking how notions of political power are factored into judicial review, and Franita Tolson on how the elections clause relates to Shelby County.  Other presenters and papers included Deborah Pearlstein's "Executive Noncompliance and the Effectiveness of Legal Constraint,"  Jeffrey Schmitt on the public land clause and an excellent panel on the related ideas of animus, dignity, and special legislation featuring William Araiza, Luke Boso, and Evan Zoldan.

Just an excellent conference that amounts to a much-needed professional reaffirmation of the project of doing constitutional law and theory at this difficult time in our nation's history.

Other notable papers being presented today include Shalev Roisman on "Presidential Factfinding" (really interesting topic); Rebecca Aviel on "Revisionist Rights Talk"; Yvonne Lindgren's "Scapegoating Abortion Rights" and Yxta Murray on "The Takings Clause of Boyle Heights."  Richard Primus continues his inquiry into the enumerated powers doctrine by looking closely at the original debate over the national bank in Congress in relation to the development of Madison's views; Christopher Schmidt is currently presenting on "Section 5's Forgotten Years" (very interesting paper) and David Schwartz follows with "The Strange History of Implied Commerce Powers."  Ilan Wurman continues his intervention into originalist theory with "Constitutional Primary and Secondary Rules."  My own contribution, which I hope to post soon on SSRN, is "Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change."  Lots of great work going on advancing our understanding of the Constitution.

Explaining the Persistence of "Impure" Legal Theories

David Pozen

Jeremy Kessler and David Pozen

In a recent post, Professor Barzun attributes to our article Working Themselves Impure the argument that when prescriptive legal theories (such as originalism, textualism, and cost-benefit analysis) persist past the point of “impurification,” they do so “because they serve as tools of professional advancement, enabling their adherents to improve their status within the relevant academic or professional community.” Our explanatory hypothesis for theory persistence is neither as narrow nor as cynical as this formulation suggests. As we discuss in the article, legal theorists and practitioners have a wide range of plausible motives for adhering to an impure theory—one that no longer serves its initial normative commitments and instead advances a set of weaker and less determinate claims.

Conscious desire for professional advancement is one such motive. But our article does not place much emphasis on it, as the excerpts below reflect. Far more significant, we suspect, are practical and political considerations as well as unconscious motives traceable to ideological and institutional conditioning. The broader point here is that both the persistence of any given impure theory and the real-world effects of that persistence cannot reliably be explained without investigating the diversity of potential reasons why people would continue to endorse such a theory.

From our article’s introduction:

[T]he persistence of ever-more-adulterated legal theories cannot be explained by broad acceptance of their initial normative commitments, for the price of persistence is the unraveling of those commitments. When such theories endure, we can expect to find them serving interests or ideals exogenous to their stated aims. The continuing bipartisan embrace of originalism, for instance, may be bolstered by its tendency to enhance the political prestige of lawyers or the moral prestige of American nationalism. In any event, the real basis for the persistence of an adulterated prescriptive legal theory—and the real stakes of that theory’s persistence—will be only dimly illuminated by the theory itself.

And from the last few pages on which Barzun focuses:

[I]n light of the weaknesses of alternative explanations, the exogenous hypothesis—that highly adulterated legal theories persist because they serve interests and ideals that are not compassed by the theories themselves—strikes us as the most useful starting point for further empirical work.

If this hypothesis proves correct, it would warrant an important caveat to Part V.A’s relatively optimistic take on the life cycle. To whatever extent highly adulterated theories persist because they serve interests and ideals “off the page,” such persistence will not merely recapitulate the legal and political status quo. Instead, it will subtly shift the balance of social and economic forces within the status quo. At T6 of the life cycle, some legal actors will be in a more powerful position than they were at T1, and so will be better equipped to resolve the underlying dispute on favorable terms. Recapitulating a debate about the definition and enforcement of fundamental rights through an originalist lens could influence the ultimate outcome of the debate insofar as a bipartisan embrace of originalism enhances the persuasive authority of certain lawyers—for example, those steeped in Founding era history—or links the question of rights to a certain vision of American nationalism or exceptionalism. On multiple levels, then, adulterated theories may exert disciplinary effects on the legal academy and the practice of law even when they fail to achieve their internal goals—altering not only which sorts of lawyers (and nonlawyers) are in or out, up or down, but also which styles of research, rhetoric, and justification have more or less currency. These effects operate at the level of ideas and institutions, not just individual reputations and aesthetics.

A new research program for public law scholarship might investigate these dynamics within the framework of the life cycle model. The life cycle suggests that systematic scrutiny of the indirect and unintended effects of prescriptive legal theories is integral to understanding why these theories succeed, and to assessing the costs of that success.

Pace Barzun, the article’s life cycle model directly engages with “the substance of [a given] theory’s claims and assumptions.” Indeed, it is only when those claims and assumptions have broken down that the puzzle of a theory’s persistence comes to the fore. In the absence of the claims and assumptions that explicitly motivated the theory in the first place, investigation into other possible motives for adhering to the theoryand into the possible consequences of such adherence—is in order. Nothing in Barzun’s proposed deconstruction of the distinction between internal and external explanation in the social sciences undermines this point. We leave it to readers to judge whether our approach or Barzun’s is more likely to stimulate fruitful scholarly inquiry.

Tuesday, March 13, 2018

The wisdom of Publius and our militarized society

Sandy Levinson

In Federalist 8, Publius (in that case Alexander Hamilton) warns that failure to ratify the Constitution would lead to the almost inevitable breakup of the fragile United States (under the Articles of Confederation) and the creation of two or three independent countries.  Each of them would have to create its own armed forces.  More to the point, each of them would genuinely be consumed by fear of war and thus become steadily more militarized in its culture.  On the other hand, if we ratified the Constitution, there would be only one standing army to pay for and, more importantly, we could rest secure that we really wouldn't have to worry very much about the prospects of actual war, since we would be united internally and we'd have the "pond" of the Atlantic Ocean to protect us against against imminent invasions from European powers.

Whatever one thinks of that argument's validity in 1787, it speaks to us today in a very different key:  That is, the "pond" is no longer an effective barrier, even when supplemented by the far bigger one of the Pacific Ocean.  Instead, we are terrified of an attack from North Korea some ten thousand miles away, and we have military bases literally all over the world (including, of course, South Korea, 65 years after the "armistice" that ostensibly ended the armed conflict there).  And we have become a thoroughly militarized culture, where the "defense" budget is the tail that wags the dog, seemingly immune from serious cost-cutting.  We reflexively treat everyone in the armed services as a "hero" whose service demands gratitude, unlike, say, school teachers who, especially if they are in the public schools, are increasingly treated as almost contemptible by the powers that be.

What provokes these remarks is a fascinating piece in The Economist on the Parkland school shooting by Nikolas Cruz.  Not only was he not an undocumented alien or a Muslim, which one suspects was the hope of the Trump Administration; he was in fact a "veteran," so to speak, of the Junior Reserve Officers Training Corp program, funded by federal tax dollars through the Pentagon, "that provides military-style training to high-school pupils."  As the article points out, the program (or, in Brit-spelling, "programme") has become an essential recruiting tool for the Pentagon, especially in these days of low unemployment when youngsters might legitimately wonder why they should go into the armed forces rather than seek some other form of employment.  (This, of course, brings up very important questions about our move toward an "all-volunteer" army, the topic of a separate discussion).  The article notes that a disproportionate number of the programs are at schools with a greater enrollment of African-American and/or poorer students (defined by eligibility for reduced-cost lunches).  One suspects that Mr. Cruz was just the kind of person, ex ante, they were looking for.

All programs are subject to failures, of course.  It is interesting, though, that no one, save the Economicst, has suggested that the ability of Mr. Cruz to pick up sharpshooting skills in the JROTC should cause us to think further about that program, as against the hysteria that leads trumpistas to advocate armed teachers and the like to guard against what is, at the end of the day, a far smaller threat than, say, the prospect of "ordinary" fire-arms accidents taking the lives or injuring children and other innocents.

So the next time we see a highschooler wearing a marksmanship medal gained through the JROTC should we say "thank you for your service" or wonder about the potential for some future non-state-sponsored violence?   In any event, each day beings more corroboration for Publius's basic insight.  We are increasingly defined as a "national-security, surveillance society." Donald Trump certainly didn't start it. He is simply the most grotesque manifestation of what that entails.

Monday, March 12, 2018

Some Realism about Internal and External Points of View

Guest Blogger

Charles Barzun

Ordinarily there would be little profit in writing a reply to a reply to a reply to an article, but I thought it would be useful to revisit an exchange between myself and Jeremy Kessler & David Pozen on the subject of legal theories. (For earlier installments, see their “surreply” to my Response to their article, “Working Themselves Impure: A Life Cycle Theory of Legal Theories,” which I recently learned appeared last year as a post on this blog. ) This exchange exemplifies a point I’ve made previously, namely that distinguishing between “internal” and “external” “points of view” in law and legal theory is unhelpful and often serves as a way to shield one’s arguments from criticism instead of engaging with it.

The issue in this case is Kessler and Pozen’s “life-cycle” theory of the rise and fall of prescriptive legal theories. I largely agree with their descriptive claim that prescriptive legal theories (e.g., originalism, cost-benefit analysis (CBA)) often become “adulterated” over time, so that they no longer seem to serve the normative commitments that originally motivated the theory’s earliest proponents.  But K&P also make an explanatory claim.  They argue that what really explains the endurance of such theories—despite their failure to serve their original commitments—is their capacity to “serve interests and ideals that are not compassed by the theories themselves” (Working Themselves Pure, p. 1891).  That is, these theories survive because they serve as tools of professional advancement, enabling their adherents to improve their status within the relevant academic or professional community.
I questioned whether the life-cycle theory was useful for a lawyer, judge or law professor trying to assess whether a given prescriptive legal theory is worth embracing or rejecting, and I offered some reasons for skepticism.  Kessler and Pozen answer that their theory enables the curious lawyer to compare their own “external” or “exogenous” explanation of why some theory, such as originalism or CBA, has persisted over time to the “internal” explanation offered by the theory’s own proponents.  Such a lawyer will then be in a position to “make a judgment call about which is the more persuasive explanation, given her practical knowledge about the legal world.” (Some Realism, p. 4).   They accuse me of privileging an “internal point of view” that rules out asking such questions.

Far from it.  I think those are precisely the right kinds of questions to ask.  I’m just skeptical that their theory helps much in answering them.  The reason is not that K&P’s life-cycle theory takes an “external” explanation of why theories endure—and is therefore insulated from an “internal” perspective of lawyer and judges.  Rather, the problem is that almost any evidence in support of the authors’ external explanations would also count as evidence of the internal explanations – namely signs of professional advancement and success in the legal and legal-academic world (e.g., law-review citations, conference invitations, judicial appointments, or whatever).  For that reason, in my view, any lawyer, judge or legal scholar who wants to decide whether to adopt a theory (such as originalism or cost-benefit analysis) would be better served by engaging with – and critiquing – the substance of the theory’s claims and assumptions. 

Take the example of originalism.  The lawyer or legal scholar interested in taking stock of originalism as a constitutional theory may do better to skip K&P’s theory altogether and ask such questions as, “how much guidance does the text actually provide? Is talk of the document’s ‘original meaning’ just rhetoric designed to mask the discretion that judges actually possess?  Should we then not at least be honest about what courts are doing?” (pp. 237-38).  True, these are questions are substantive in the sense that they go to the empirical plausibility and normative legitimacy of the theory’s essential claims, but they do not privilege an “internal point of view” that assumes theories endure because of their intrinsic virtues.  To the contrary they are precisely the kinds of questions long asked by legal realists, critical legal theorists, and others eager to expose what is really going behind law’s official story.  

My larger point – and the point of my earlier article, linked to above – is that such talk of internal and external “perspectives” or “points of view” tends to stifle, rather than to stimulate, scholarly debate and inquiry.  Of course, it makes good sense to describe a particular causal factor as being “internal” to a particular theory or practice or “external” to it.  One can then investigate the matter empirically to see which factors matter more.  The problem arises when those terms become modifiers of two “points of view,” thereby guaranteeing in advance what sorts of explanations will be on offer: those adopting the external point of view (e.g., sociologists or political scientists) offer “external” explanations, and those who adopt the “internal” point of view of (e.g., lawyers and judges) offer internal ones.  Thus, what is properly the conclusion of an empirical (in a broad sense) inquiry is transformed into a methodological premise of that inquiry.
Once the intellectual terrain is thus divided, certain lines of defense emerge that short circuit genuine debate.  “That has no effect on my view—it’s a purely external critique.” Or: “You can’t see what I’m saying because you’re locked in an internal point of view.”  My exchange with K&P is just another example of exactly this kind of response.  And one can see its appeal.  It is typically harder to defend one’s position on the merits than it is to dismiss one’s critics as playing a different game.

Charles Barzun is the Armistead M. Dobie Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at cbarzun at

Wednesday, March 07, 2018

Young adults and politics

Sandy Levinson

As Balkinization regulars know, my wife and I co-authored a book directed at teenagers, Fault Lines in the Constitution, that, not surprisingly, examines a variety of defects in the structures created by the Framers in 1787.  We regularly blog about the book, and our latest examines the spate of student activism following the Florida shootings.  We had earlier discussed the fact that several teenagers are running for governor in Kansas and Vermont, the only two states that don't have age requirements for that office.  The mainstream press has begun covering the Kansas election, in part because GOP officials are trying to make sure that none of the youngsters will be allowed to participate in the upcoming candidate debates.  I sometime wonder if and when anyone will start suggesting that one really shouldn't trust anyone over 30 :)  Perhaps it a mistake to assume that any age cohort, including those we usually classify as "adults," are necessarily trustworthy.  Perhaps we should actually listen to what people, including the articulate thirteen-year-old running for governor in Vermont, instead of assume that he has nothing valuable to say.

I'm also taking the liberty of including an announcement by Meira Levinson about a new resource just established by a consortium of people and institutions interested in the phenomenon of student activism:

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Opioids and Unorthodox Civil Procedure: Will the MDL solve the crisis?

Abbe Gluck

The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits.   Four hundred of them are now consolidated  before a single federal judge--Judge Dan Polster in the Northern District of Ohio--who has announced his intention to settle not only all the cases before him, but ALL the cases filed across the country, before the end of 2018.  If you didn't just say "wow," you are not reading carefully enough.  I have a forthcoming article about this litigation here.

The legal animal here is multidistrict litigation, known as the "MDL."    MDLs currently occupy about a THIRD of the civil docket and yet not many lawyers or academics are familiar with them. I have previously written about MDLs as "Unorthodox Civil Procedure." They enable the consolidation of similar cases that cannot be aggregated as class actions under Rule 23; these cases are often products liability or health cases because the individuality of the harms can be fatal to the Rule 23 commonality/predominance  requirements (although many MDLs contain several class actions as well as individual cases within them). Other prominent MDLs today include the BP oil spill and the NFL concussion case. They have been around since 1968--codified at 28 U.S.C. 1407-- but it is in the last decades that they have become an exceedingly important legal tool, in no small part because of the nationalization of the economy.

The opioid litigation may be the starkest example yet of the power of large MDLs and the unorthodox role the judge assumes in them. Although the MDL statute allows consolidation only for pre-trial procedures, almost all large MDLs settle in the MDL court.  This is not surprising; large MDLs are, almost by definition, intractable problems with intractable numbers.  Case-by-case resolution through formal litigation pathways could take decades and might not be worth it for attorneys.  MDL judges tend to be problem solvers, and Judge Polster is no exception. He has chided the federal and state governments for punting the problem to the courts; he has said that the crisis is to serious to proceed through traditional  litigation paces. This quote from the judge pretty much sums it up:

"People aren't interested in figuring out the answer to interesting legal questions like preemption and learned intermediary, or unraveling complicated conspiracy theories… So my objective is to do something meaningful to abate this crisis and to do it in 2018. What we've got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly...We need a whole lot -- some new systems in place, and we need some treatment. We don't need -- we don't need a lot of briefs and we don't need trials. They're not going to -- none of them are -- none of those are going to solve what we've got."

The array of defendants is pretty extraordinary too. The plaintiffs --who range from states, to counties, to Indian tribes, and individuals-- have cast an exceedingly broad net.  They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain--which they were--two decades ago.  Judge Polster has brought all defendants to his negotiating table--including those defendants who are not even before his court.  The 41 state Attorneys General who are still investigating, as well as the states and Indian tribes that have filed in state court, and even the federal government will be before Judge Polster when he divvies the pie. Defendants are more likely to settle when they can get total peace--they don't want lingering cases.

To be clear, this is not unique. Many MDL judges conduct their cases in similar fashion.  Judge Polster's courtroom is just getting a lot of attention because of the media's fascination with the opioid crisis and how forthright the Judge has been on the record about his approach.

Nor is this the first major national public health litigation effort--tobacco, fast food, and guns offer earlier blueprints--but it has some unique features, in addition to the aggressiveness of the MDL.  Unlike the litigation it most resembles--tobacco--the opioid narrative has a far more complicated chain of causation.  Opioids, unlike tobacco, have an important therapeutic purpose; they are FDA approved as safe and effective; they are often prescribed by doctors for sound medical reasons; and then they wind their way from manufacturer, to distributor, to pharmacy, to patient. This complicates litigation because defendants can argue that intervening factors (including other defendants) make any single defendant's culpability hard to isolate.

Nor is any of this is to say that litigation is the ideal way to solve a public health problem. Concerns abound about attorneys fees', conflicts of interests, inadequate settlement and the possible overreach of the presiding judge. No one knows what the remedy will be, if it will be sufficient, or if moneys received will actually go toward those who need it.  The complaints are remarkably vague about the relief sought.  Some believe MDLs are undemocratic and violate due process. Others welcome them as means toward resolution of huge public problems.

One commentator said to me yesterday-- "anything he does will be smacked down on appeal."  Not likely.  Any MDL settlement and the pretrial consolidation work Judge Polster does is unlikely to be an appealable final order.  That is another aspect of what makes MDLs unorthodox. The single judge has an enormous role.

But litigation has already spurred change in both the industry and the practice of medicine.  It has played a central role in the public response to the epidemic, no mater how you slice it.  And the MDL is the game changer. For more about this case, read here.  For more about MDLs in general, here.  For NY Times profile of Polster, here.

Monday, March 05, 2018

Originalism as a Topic versus Originalism as a Theory


I have said on a number of occasions that originalism as a theory of interpretation is not widely practiced outside the United States, and that even within the United States, state judges tend not to be originalists. Nevertheless, over the years, people have pointed out, quite correctly, that this judge or that judge in another country, say Canada, or Malaysia, has made arguments that look and sound pretty originalist. There are also a very sizeable number of originalist arguments in state constitutional decisions--these happen, for example, anytime a state court interprets a recent referendum or state constitutional amendment.

So what is going on? My latest article, Arguing About the Constitution: The Topics in Constitutional Interpretation, helps clear things up.

The article argues that when lawyers make constitutional arguments, they use stock forms and strategies of argument, which classical rhetoric calls topoi or topics. Most people in constitutional theory know about Philip Bobbitt's famous catalog of topics, which he called "modalities."

Topics give lawyers ways of analyzing legal problems and arguing about how to resolve them (hence the title, "Arguing about the Constitution"). Standard topics rest on commonplaces about what makes a constitutional argument valid and persuasive. These commonplaces are incompletely theorized-- that is, people may agree with the basic premise (for example, that arguments from purpose are valid), but they may not have thought very much about why the premise itself is valid and once they start arguing about it, they might well have different views.

We can think of originalism in two different ways. The first is as a general theory of constitutional interpretation.  This is the view that the original meaning, original intention, or original understanding of the Constitution is fixed at the time of adoption, and that we should always interpret consistently with it.

A second way to think of originalism is as a set of rhetorical topics, that is, a series of standard arguments that lawyers invoke whenever they think it will help them analyze a problem or persuade an audience. In American legal culture, these topics include arguments from text, purpose, structure, tradition, ethos, and so on.  For each of these topics, there are special cases--or subtopics--that focus on adoption history. These topics include arguments from the original meaning of the text, from the original understanding of the adopters, from the original intention of the framers, from the ethos of the founders, from the values of the founders, from the political tradition of the founders, and so on.

The key point is that you don't have to be committed to originalism as a general theory of interpretation to use any of these originalist-style topics, anymore than you have to be a textualist to occasionally make arguments from the text, or a structuralist to occasionally make arguments about structure.

That's how topics work-- they are a grab bag of generally accepted kinds of arguments that lawyers can pull out, as the need arises, to analyze a situation and persuade their audience. Lawyers can make an argument from original understanding in one case and an "non-originalist" argument from consequences in the next; indeed, they can make both arguments in the very same case.

Therefore, we should expect that lawyers and judges, both in the United States and in other countries, will use originalist-style topics on occasion. They will do so whenever they think that it makes their arguments more persuasive, just as they will avoid using originalist-style topics whenever they think this would undermine or embarrass their arguments.
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The Costs of Conscience and the Trump Contraception Rules

Nelson Tebbe

Nelson Tebbe, Micah Schwartzman, and Richard Schragger

We have been arguing that the Constitution prohibits the government from accommodating religious practices when doing so entails undue hardship to third parties. That principle is both normatively justified and grounded in legal doctrine, according to work we have published here, here, here, and in several blog posts and opinion pieces.

In response, critics have asked how that argument fits together with another of our convictions, namely that religion generally ought not to be treated with special solicitude in constitutional law. In a new paper, we answer that our normative arguments for the third-party harm principle also apply outside of religious beliefs and practices. In particular, government accommodation of conscience can generate costs to other citizens that raise many of the same concerns as third-party harms in the religion context. (One of us has advanced a similar argument in a separate reply to critics.)

Contemporaneously, events in the world are making this argument relevant. Last October, the Trump administration issued two interim final rules that exempt employers that object to the contraception mandate. (We explained the background to those rules here.) The new rules relate closely to our new argument because they do not only exempt employers who have religious objections to the contraception mandate—they also exempt employers who have moral objections to the requirement. And because neither of these exemptions requires any accommodation of workers, they will impose burdens by stripping employees of contraception coverage without cost sharing.

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Saturday, March 03, 2018

The Real Purpose of the Foreign Emoluments Clause

Gerard N. Magliocca

Undoubtedly you are aware that the President is being sued for allegedly violating the Foreign Emoluments Clause of the Constitution. While I do not believe that the plaintiffs in these cases have standing, the theory behind the litigation is that the President's business interests are receiving foreign benefits because of his status as President. In other words, foreign governments are trying to bribe him by staying at his hotels, renting out his properties for events, and so on. Then there is the related claim that domestic competitors are being harmed by this influence peddling (because they are not getting these sorts of bookings).

I think, though, that this analysis misses what the Foreign Emoluments Clause is meant to prevent. The true problem is that presidential business interests give foreign nations leverage over a President that could harm the national interest.

For instance, the President has just announced his intention to impose steel and aluminum tariffs. This is an incredibly stupid idea, but that's a debate for another day. One argument against the tariffs is that they will lead to a cycle of retaliation from our trading partners that will make us worse off.

If you think about it, though, there is a more logical way for these countries to proceed, They could just retaliate against the Trump Organization. According to that website, there are Trump properties in Canada, the UK, Ireland, Dubai, Indonesia, Turkey, South Korea, the Philippines, Uruguay, and India. (There are probably pending projects in other nations, though who knows.) I doubt that the President will care much about retaliatory tariffs on American goods. He will, though, care a lot about measures that directly affect his financial interests. (Just a hunch.)

The Foreign Emoluments Clause, if observed, makes this sort of threat far less powerful. In this case getting the proposed tariffs withdrawn through foreign pressure on the President's businesses would be in our national interest. But in another situation with another President that would not be the case. This is why someday I hope Congress enacts legislation to enforce the Clause effectively, though at present I see no remedy available.

Rethinking the Modalities of Constitutional Interpretation


I have posted my latest article, Arguing About the Constitution: The Topics in Constitutional Interpretation, on SSRN. Here is the abstract:

Constitutional construction is the element of constitutional interpretation that implements and gives effect to the Constitution. Two features of legal practice help ensure that construction is guided by and furthers the Constitution. The first is an interpretive attitude of fidelity to the Constitution and to the constitutional project; the second is a set of techniques derived from the common law. Lawyers and politicians adapted common law techniques for construing legal texts to the U.S. Constitution once it became a legal document. American lawyers still employ descendants of these techniques today. These techniques are what classical rhetoric calls topoi or “topics” that are characteristic of American constitutional law. These topics are tools for the analysis of legal problems and for the generation of legal arguments. They involve commonplace but incompletely theorized justifications for constitutional interpretation.

Constitutional topics connect the text of the Constitution to its implementation; they allow people with very different views to argue that their proposed interpretations are faithful interpretations of the Constitution and further the Constitution. The article explains the topical approach to constitutional argument and contrasts it with Philip Bobbitt’s well-known theory of “modalities” of constitutional argument. Unlike Bobbitt’s model, the topical approach is consistent with many different kinds of constitutional theories, including originalist theories.

* * * * *

Back in 2013, I wrote an article on how lawyers use history in constitutional interpretation: The New Originalism and the Uses of History.  I argued that lawyers channel history through existing modalities of legal argument-- that is how history gains authority in law.

One difficulty I faced was that Bobbitt's famous theory of six modalities is not well designed to talk about how lawyers use history. That is because Bobbitt treated "historical argument" as a single modality, instead of something used by all modalities; and he also identified "historical argument" with arguments about original intention.

This led me to propose a new list of modalities--one that allowed for the many different uses of history in constitutional argument, and that did not limit "historical argument" to adoption history or original intentions.

But there were still further problems. Bobbitt's theory of the modalities was inconsistent with all forms of originalism. Yet originalists use the modalities all the time. He argued that the modalities were wholly incommensurable and that conflicts between them could only be resolved by individual conscience. But this, too, was not an accurate account of how lawyers argue.

The next step, which I take in this article, is to rethink what we really mean by "modalities" of constitutional argument. In fact, the idea behind recurring forms of argument is very old; it emerged in Ancient Greek and Roman rhetoric. The current article, Arguing About the Constitution, shows what the modalities really are, why they help us expound the Constitution, how they assist in the development of constitutional doctrine, and why they are compatible with many different kinds of constitutional theories.

Friday, March 02, 2018

The Interpretive Poverty of Data

Guest Blogger

Stanley Fish

This brief essay was delivered as a response to a paper co-written by Justice Thomas R. Lee and James Phillips, Data Driven Originalism, at the Originalism Works-in-Progress Conference held at the University of San Diego on February 16-17, 2018.  The desire to generate human meaning by eliminating from the patterns that convey it all traces of the human is at once perennial and doomed to be ever unfulfilled.

Back in the seventies there was a fast-growing sub-discipline that promised to marry linguistics and literary criticism in a way that would provide an objective basis for the interpretation of texts. It was called stylistics and I am pleased to say that I pretty much killed it by writing two essays, “What is Stylistics and Why Are They Saying Such Terrible Things About It?” and “What Is Stylistics and Why Are They Saying Such Terrible Things About it? Part Two”. In those essays I said that Stylistics failed in two respects. More often than not, the mountainous machinery it usually cranks up labors to produce something less even than a mouse; you wade through a whole lot of charts, distribution patterns, selection patterns, contiguity patterns and find waiting for you at the other end  something that would have been obvious  from the get-go to a ten year old. And, on the other hand, if at the end of the whole business there is an interpretive insight that seems novel and arresting , its relationship to the operations of the analytical machine is entirely arbitrary. Either you do all that counting and sorting and come up with a pompously inflated version of what you had at the beginning,  or you do all that counting and sorting and then attach to the resulting data an interpretation it does not generate; to be sure,   the interpretation may be one the data can be made to support,  but only because the data , just sitting there in all its empty bulk, can be made to support anything.

Consider, for example the case of Louis Milic, a computational stylistician, who studied the relative frequency of initial determiners and initial connectives in the sentences of Swift, Macaulay, Addison, Gibbon and Samuel Johnson. He discovered that Swift, to a much greater degree than the other authors, began his sentences with connectives and he concluded that “The low frequency of initial determiners, taken together with the high frequency of initial connectives, makes [Swift] a writer who likes transitions and makes much of connectives”. That’s the banal fruit of the analysis. The arbitrary fruit comes a bit latter when Milic notes that it was Swift’s habit (as it is in fact mine) to extend the length of his sentences by producing a series of appositional phrases that threatens never to end.  His conclusion? Swift’s “use of series argues a fertile and well stocked mind”. Why not say that Swift’s use of series argues an empirical rather than an abstract cast of mind , or that Swift’s use of series argues an anal-retentive personality or that Swift’s use of series argues an unwillingness to let go of a thought. These and a thousand other interpretive conjectures will fit the data Milic assembles, but there is no genuinely motivated route from the data to any one of them. As a statistical output, Swift’s use of series has the status of an ink-blot in a Rorschach test. The researcher/analyst asks, what might that mean , do you think?, and the answers are immediate and infinite.

Behind Milic’s efforts is the assumption, difficult to dislodge no matter how many times it has failed to cash out, that banks of data , especially data compiled disinterestedly,  can yield interpretive conclusions; and the further assumption is that the conclusions thus yielded will be more objective, because less impressionistic, than the conclusions reached by a single  interpreter who , because he or she is a finite, limited creature, can only survey a finite and limited number of texts  and will therefore always be working with an inadequate and distorting sample. This is an important claim, for after all why go to all the bother  of getting the machine going if there’s no payoff? The payoff has to be some improvement in interpretive methodology, an improvement that responds to the usual fears of interpretation’s being biased, partial, manipulative, and willful. Stefan Th. Gries , a leader in the corpus linguistics movement, puts the matter forthrightly when he says that the “assumption underlying most corpus-based analysis is that formal differences reflect or correspond to functional differences” and adds that “ functional difference is understood …as anything—be it semantic or discourse pragmatic—that is intended to perform a particular communicative function”. In short, it should be possible—and this is the only reason someone other than a descriptive linguist would be interested in corpus linguistics at all-- to map formal differences onto content differences, to correlate features of a text described independently of any  interpretive hypothesis with a particular interpretation.

It isn’t possible and it never will be.

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Poor Joshua Had No Gun

Joseph Fishkin

After the mass shooting at Marjory Stoneman Douglas high school in Parkland, Florida, Republican lawmakers in Tallahassee are now calling for the Governor to exercise his authority to suspend the Sheriff of Broward County, Scott Israel, for “incompetence and neglect of duty” for failing to prevent the massacre.  In a letter to the Governor, the lawmakers describe a long catalog of warning signs that they argue the Sheriff’s office ignored.  It begins: “During Sheriff Israel’s first week in office, his deputies responded to a call from [the then-14-year-old shooter’s] mother, who complained about her son’s violent response to her taking away his video games.  They did nothing.”  The letter goes on to cite dozens of additional calls to sheriff’s deputies through November 2017 that should have raised concerns, but each time, the letter repeats its refrain: “Nothing was done.”  As a final straw, one sheriff’s deputy was outside the school during the shooting itself and did not act.

The calls for Sheriff Israel’s removal brought to mind another famous case of police inaction—one that similarly turned on the possibility that, if the police had intervened in a timely way, they might have prevented the slaughter of children.  In the 2005 Supreme Court case of Castle Rock v. Gonzales, Jessica Gonzales alleged that she had shown the Castle Rock police a copy of a temporary restraining order a court had entered against her estranged husband, which ordered him not to “molest or disturb the peace of [Gonzales] or of any child” and to stay at least 100 yards away from her house.  She alleged that the police nonetheless refused, for hours and despite her increasingly desperate calls for help, to do anything to investigate, after her husband showed up at her house and kidnapped their daughters, who he later murdered.  Castle Rock built on a prior and more famous 1989 Supreme Court case, DeShaney v. Winnebago County Department of Social Services (DSS), in which the local social service agency charged with preventing child abuse did nothing, despite mountains of tips and evidence, including highly suspicious and severe injuries, to protect 4 year old Joshua DeShaney from physical abuse by his father, which finally left the child with profoundly life-altering traumatic brain injuries from blows to the head. (Joshua died in 2005 at age 36.)  In DeShaney, and again in Castle Rock, the Supreme Court held that the Constitution categorically does not offer individuals protection against private violence, even when that violence might have been prevented by the actions of the police or other government actors whose official duty is to prevent such violence.  The Supreme Court majorities in these cases framed them in terms of a bedrock constitutional axiom—one born in the late 1970s and 1980s—that the Constitution secures only negative rights, not positive rights.  On this view, you can complain about police action that violates your rights, but if your complaint is about police inaction, you’re out of luck.

Justice Brennan’s dissent in DeShaney could have been written by Robert Hale.  Lamenting the majority’s “fixation” on the formalistic distinction between positive and negative rights, Brennan disputed that the case was really about government inaction in the first place. “I would focus on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State has failed to take,” he begins.  What action?  The state “has established a child welfare system specifically designed to help children like Joshua” and the state specifically “directs” citizens and police and everyone else “to depend on” this system and make sure it is the place where you report abuse—thereby “reliev[ing] ordinary citizens . . . of any sense of obligation to do anything more than report their suspicions of child abuse to DSS” and ultimately displacing whatever sources of private help might have been available to Joshua in a world without the DSS.

Brennan didn’t bother to point this out, but there are lots of reasons we might have thought such displacement a sound idea.  Neighbors confronting neighbors over child abuse—well, that could work, but it’s likely to go disastrously wrong frequently enough that it makes a lot of sense to socialize this function.  This sort of thing is a big part of why you build a modern social welfare state.  The same kind of logic explains why Broward County has a Sheriff.

Obviously there are reasons why one might call for the suspension or resignation of a Sheriff who failed to prevent the slaughter of the children in Parkland while not similarly calling for courts to allow constitutional claims against the police who failed to prevent the slaughter of the children in Castle Rock, or the DSS that failed to prevent the abuse of Joshua DeShaney.  There’s an institutional difference between sanctions by a Governor and court claims by victims.  Still, there is an underlying normative through line here that is hard to ignore, and it has to do with the core ethos of a certain species of libertarianism.

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