Balkinization Symposium on Kunal Parker, The Turn to Process-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023)

1. Jack Balkin, Introduction to the Symposium

2. John Fabian Witt, The Unbearable Lightness of Process in the Empire of Substance

3. Amalia D. Kessler, The Turn to Process in Comparative Context

4. Paul Gowder, Historicizing History?

5. Ajay K. Mehrotra, From Stable Foundations to Dynamic Processes (and Back?)

6. Kunal M. Parker, Method and History

Can Private Law Protect Privacy in Today’s Economy?

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Elettra Bietti

 A few weeks ago, Carrie Goldberg, an online victims’ rights lawyer, visited my classroom. Students were attentive as she recounted her clients’ cases. Nude pictures of a victim disclosed to her work colleagues by a former boyfriend, child abuse on the site Omegle, several youth who died after buying suicide kits suggested to them on Amazon Marketplace: these were clear situations where data and privacy interferences caused extremely significant losses that courts could hardly turn a blind eye to. Many–-most—of Goldberg’s cases are fought on tortious grounds. Most of them form the tip of a much larger iceberg that Ignacio Cofone, in his book, calls “privacy harms.”

Method and History

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Kunal M. Parker[1]

Immense thanks to Paul Gowder, Amalia Kessler, Ajay Mehrotra, Aziz Rana, and John Witt for their thoughtful, incisive, and occasionally spirited engagements with The Turn to Process.  Many thanks as well to Jack Balkin for agreeing to host this symposium.  In what follows, I set forth some of what I hoped to accomplish in The Turn to Process.  This will allow me to respond to the points made by the contributors.

Privacy Beyond Consent: Cofone’s Call for Privacy Torts

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Nikolas Guggenberger

In her seminal work on boilerplate contracts, Margaret Jane Radin distinguishes between World A and World B to illuminate the fundamental tension between contract theory’s ideals and modern contractual reality. World A embodies the classical paradigm: contracts emerge through meaningful negotiation between informed equals. Here, parties exercise genuine autonomy, carefully reviewing terms before signaling informed consent. This world reflects contract law’s theoretical foundation—voluntary agreements between parties who comprehend and actively shape their obligations. In World A, freedom of contract justifies the enforcement of promises against people’s future selves, as Kaiponanea Matsumura put it.

World B depicts contemporary consumer contracting: dense boilerplate terms imposed unilaterally, often buried in clickwrap agreements or fine print. Consent becomes illusory, autonomy a farce. Recognizing boilerplate as binding contracts, Radin argues, fundamentally undermines contract law’s moral premises. Sheer ignorance cannot justify the waiver of rights or the creation of duties. When “consent” means blind subordination, contract law no longer serves its intended function of facilitating voluntary exchange. Or, as Friedrich Kessler observed some 80 years ago, modern contracting “enables enterprisers to legislate by contract ... in a substantially authoritarian manner without using the appearance of authoritarian forms.”

In his tour de force through privacy law’s systemic shortcomings, The Privacy Fallacy, Ignacio Cofone squarely locates contemporary data management practices in the privacy equivalent of World B, that of meaningless acquiescence to unread privacy policies. And he is right in his assessment. ‘Notice and choice’ is inherently deficient. It indeed provides neither notice nor choice. Worse, it is inept to address informational capitalism’s threats to the common good, from democratic self-governance to social equality. However, Cofone’s critique extends far beyond the current ‘notice and choice’ framework in the US or the privacy equivalent of World B more generally. He launches a fundamental challenge to consent as a regulatory mechanism for informational privacy across sectors and jurisdictions. His “book’s core premise,” he explains in the introduction, “is that rather than grounding privacy law on concepts from contract law, which sets the rules for voluntary agreements, we need to ground it on concepts from tort law, which sets the rules for harms caused to others.” (p. 4)

Autonomy v. Autonomy in the Information Economy

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

 Nikita Aggarwal

In The Privacy Fallacy: Harm and Power in the Information Economy, Ignacio Cofone delivers a powerful and much needed rebuke of our current approach to regulating privacy in the information economy. Synthesizing and building on a prior literature to which Cofone himself has contributed, he shows us how and why the largely individualistic, contractual and procedural methods of data protection and data privacy law have persistently failed to deliver. Cofone’s arguments drawn from the (behavioral) economics of data processing are especially persuasive. As he argues, under conditions of asymmetric information and power between consumers and firms, consumer irrationality, uncertainty about future data use, and the relational, non-rivalrous and only partially excludable nature of personal data, bilateral contracts for personal data will be inherently incomplete. This is increasingly true in a world of big data and sophisticated AI systems, in which it is much more difficult for individuals to meaningfully consent to future inferences and uses of their personal data.

Privacy Inserts

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Yan Shvartzshnaider 

Inappropriate information sharing can lead to privacy violations and cause real harm. Nevertheless, these “[harms remain] invisible, and [are exploited] in the information economy [continuing to] proliferate,” because “the courts and regulators perceive privacy interferences solely through the lens of monetary losses” (Cofone 2023).

As we become increasingly dependent on online services, we frequently ask, “Is this service/app safe, privacy-preserving, and secure?” Unfortunately, for the average consumer, it is difficult to find definitive answers. Modern services generate, collect, share, and trade vast amounts of information as part of a complex digital ecosystem of third-party services and actors. What makes the situation even more complex is that their information-handling practices often go beyond the immediate needs of their service. This is especially true of mobile apps, which often build their business models around data collection, rather than the information services they provide.

Taking Power Seriously: The Politics of Privacy

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Alicia Solow-Niederman

If you attend an information privacy law conference and say that privacy is power, you’re likely to be met with vigorous agreement.  Ignacio Cofone’s timely intervention, The Privacy Fallacy: Harm and Power in the Information Economy, adds to this scholarly consensus with a distinct spin.  Cofone’s core premise is that privacy law has erroneously looked to contract law, which provides a mistaken understanding of the power relationships and interactions between individuals and the entities who trade in their data.  Instead, we ought to look to tort law.  He argues that an approach grounded in tort law shifts away from privacy law’s fixation on providing individual choice and individual control rights, and towards a liability regime that better matches the actual relationships and power dynamics of our information economy.  As Cofone contends, “Privacy law’s challenge is no longer regulating individual choices, but rather regulating relationships of power” (p. 10).  This is especially true as artificial intelligence increasingly enables corporations and governments to process bits of unrelated data and draw inferences about individuals and about unrelated third parties – including in ways that no one person can reasonably be expected to control. 

I commend Cofone for his attention to power and agree that regulating power in the contemporary information economy requires “meaningful accountability for the powerful” (p. 165).  And I commend him for moving the conversation beyond acknowledgements that power matters, and for offering concrete legal hooks that might promote “harm-based privacy liability” (p. 139).  But I also worry that taking power seriously requires more. 

In the remainder of this blog post, I argue that confronting power dynamics in information privacy requires recognizing the politics of privacy.  My approach admittedly zooms out from the particulars of Cofone’s argument and instead focuses on a single concept: Power.  My intent, however, is not to disregard Cofone’s detailed prescriptions.  Rather, I take this tack because power is a leading player in Cofone’s account: It is not only part of the title, but also so central to the argument that there are 22 entries for it in the book’s index.  Consider this intervention a “yes, and” addition to Cofone’s argument.  Unless and until we accept that a robust, substantive understanding of privacy entails political tradeoffs, we cannot take concrete steps to curtail privacy harms.  And especially in an era of increasing partisan polarization, blinking this reality will water down any effort to redress privacy harms.

Asking the Right Questions: How The Privacy Fallacy Can Guide Health Law Out of the HIPAA Trap

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Claudia E. Haupt

Ignacio Cofone’s insightful new book, The Privacy Fallacy: Harm and Power in the Information Economy, illustrates the importance of asking the right questions. In his telling, the traditional contracts-based approach to privacy lacks regulatory salience. First, it overlooks the crucial role of the larger information ecosystem. By ignoring the structure of hierarchies built into this system, the traditional approach misses the embeddedness of individual interactions. Solutions to protect privacy based on this approach will necessarily fall short, because they erroneously assume discrete individual relationships. Second, the contract-based model of privacy is based on a range of faulty assumptions about the way individuals operate within this system. Instead, Cofone proposes a liability system built on concepts from tort law to remedy harm.

Valuing Privacy Harms while Structuring Data Governance

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Frank Pasquale 

Ignacio Cofone’s The Privacy Fallacy is an important contribution to a rapidly growing literature on data protection. He critiques over-reliance on contract law in the governance of data, and the need for tort principles to compensate for (and deter) privacy harms. He articulates a complex theory of privacy liability that is capacious enough to address a wide range of harms arising out of data breaches, misuses of sensitive information, and other wrongs. This post is largely an appreciation of the book, with a few closing thoughts on two areas of future work it invites: better valuation of privacy harms, and more robust structures of data governance.

          Cofone sets the stage by arguing that a core legal rationale for the obligations and opportunities embedded in digital data transactions today is a lie. As he observes: 

Privacy consent is an illusion. Consent-based privacy protections allow corporations to do as they please with people’s data as long as they’re able to extract superficial agreement. We routinely experience this (lack of) protection when we mechanically click “I agree” to websites’ and apps’ terms of service. Individual consent provisions fail to address the harms produced by aggregated, inferred, and relational data. They ignore information asymmetry, lack of choices, and unequal bargaining (66). 

Far too many contracts “unshackle[] informational exploitation” rather than offering robust protections.

Aware of this, many voices in privacy law have tried to improve consent—for example, by making it more informed. Cofone calls these “traditionalist solutions,” and many do seem obsolete. The overwhelming weight of dark patterns and manipulation online, as well as the many offline pressures contributing to social acceleration, make it exceptionally difficult for any consumer to sagely weigh the costs and benefits of granting data to one entity and denying it to another. As Cofone argues, “information overload prevents us from realizing how much risk our information involves.”

Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy

JB

This week at Balkinization we are hosting a symposium on Ignacio Cofone's new book, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

We have assembled a terrific group of commentators, including Nikita Aggarwal (Miami), Elettra Bietti (Northeastern), Nik Guggenberger (Houston), Claudia Haupt (Northeastern), Margot Kaminski (Colorado), Kirsten Martin (Notre Dame); Frank Pasquale (Cornell); Yan Shvartzshnaider (York), Alicia Solow-Niederman (George Washington), and Elana Zeide (Nebraska).

At the conclusion, Ignacio will respond to the commentators.

"Right in Theory, Wrong in Practice:' Women's Suffrage and the Reconstruction Amendments

Gerard N. Magliocca

This is the title of my new draft paper on SSRN. Here is the Abstract:

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon.

Divine Madness

Andrew Koppelman

When (and How) Should Courts Use AI?

Andrew Coan

 When and How Should Courts Use AI?

(coauthored by Harry Surden)

The debate between constitutional formalists and realists has largely focused on the kinds of controversial questions that come before the Supreme Court. In such cases, there are nearly always plausible legal arguments on both sides. Constitutional formalists think judges should decide between those arguments on the basis of original public meaning—or, at any rate, on the basis of some criterion other than their own moral and political judgment. Constitutional realists doubt this is possible and, at any rate, think the moral and political judgment of judges is at least some of the time normatively superior to the various criteria defended by formalists. The stakes of this debate are very high because the resolution of such cases by the Supreme Court shapes public policy on vitally important questions for the entire country.

In all of these respects, the constitutional questions that come before the Supreme Court are exceptional, rather than normal. The kinds of constitutional questions most often posed in the federal district courts—and quite often in the federal courts of appeals—generally have clear or fairly clear answers that most or all judges applying any mainstream interpretive approach would agree on. The same is true for many, if not most, of the constitutional questions that never make their way to court. Questions arising at the lower levels of the federal judicial system—and completely outside it—also tend to have lower stakes for the legal system as a whole. Decisions of federal district courts have no precedential effect, and the decisions of federal courts of appeals govern particular geographic regions, rather than the whole country.

These courts also have far larger caseloads and far fewer resources to devote to the decision of each case than does the Supreme Court. The same is generally true for government officials and government institutions grappling with constitutional questions outside of court. For all of these reasons, the plausibility and attractiveness of using AI to generate clear legal answers with maximum speed and efficiency is significantly greater and less controversial outside the rarefied realm of the Supreme Court.

For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.”

Simulating AI Constitutional Interpretation

Andrew Coan

(coauthored by Harry Surden)

To investigate how modern AI systems handle constitutional interpretation, we conducted a simple simulation using ChatGPT4 and Claude 3 Opus to decide the questions presented in two highly salient recent Supreme Court decisions, Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard. Our goal was to compare these two tools and test the impact of different framing choices on large language model (LLM) outputs. We also wanted to test the robustness of LLM responses in the face of counterarguments.

We began by posing the precise questions presented in Dobbs and Students for Fair Admissions to ChatGPT4 and Claude3Opus and asking them to decide these cases, without specifying an interpretive method. We then proceeded to ask the models, in separate conversations, to decide the same questions under different interpretive approaches, including a relatively spare and neutral description of original public-meaning originalism and a more fulsome and controversial description of that interpretive approach.

The results were impressively consistent across both models. When we didn't specify an interpretive method, both AI systems adhered to existing Supreme Court precedent, upholding both abortion rights and affirmative action. When instructed to decide as "liberal living constitutionalists" in the tradition of Justice William Brennan, they reached the same results. But when told to apply originalism, both systems reversed course and voted to overrule those same precedents.

Most remarkably, both Claude and ChatGPT reversed themselves in every case when presented with standard counterarguments that any first-year law student could formulate. Experts refer to this phenomenon of LLMs tailoring their outputs to match user preferences as "AI sycophancy," and it raises serious questions about the reliability and malleability of LLMs as constitutional interpreters. More generally, the extent to which human inputs drive LLM outputs suggests that the use of LLMs for constitutional interpretation will implicate substantially the same theoretical issues that today confront human constitutional interpreters.

For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.”

Flat out redistribution of wealth at the Federalist Society

Andrew Koppelman

At a panel at the Federalist Society Lawyers Convention in Washington, DC earlier this month (where I served the familiar role of token lefty), I was hissed by the audience when I called for "flat out redistribution of wealth."  Then I got them to abruptly stop hissing, because they hadn't contemplated all the forms of redistribution that they are, in fact, reconciled and even committed to.  See https://www.youtube.com/watch?v=WJWdfIHgg8M&t=8491s at 1:39.  When I'm in a friendly mood, I say that I speak at the Federalist Society to look for common ground.  When I feel less friendly, I say that I go there hoping to make at least some people in the audience feel ashamed of themselves. But these are in some ways equivalent: I can make you ashamed only if you and I hold ourselves accountable to at least some of the same standards.

What Loper Bright Illustrates About the Incoherence of the Court's Statutory Interpretation Theory

Abbe Gluck

  Loper Bright is a maddening opinion for statutory interpretation afficionados. The Court killed Chevron based on purported theories of statutory-interpretation separation of powers, but those theories do not actually reflect the Court's usual practice, despite the Court's claims. My new piece in the Harvard Journal of Legislation details this argument. Here's an excerpt:

   The opinion reads like a statutory-interpretation manifesto—and suggests that Chevron is being overruled for violating its precepts. The Court proclaims that canons of interpretation must reflect the realities of the congressional drafting process to effectuate legislative intent. It says canons are precedents and that canons are legitimate only to the extent they originated at or before the founding. The Court asserts its view of statutory meaning is originalist, fixed at the time of enactment. It argues the Chevron doctrine was uniquely unworkable.

  Actually, no. Most of the Court’s interpretive canons do not reflect congressional drafting practice, and the Court usually does not view that fact as delegitimizing. Some justices even now expressly disavow interest in congressional practice for purposes of interpretation. This Court has said instead that it is determined to displace any inquiry into what Congress meant or what Congress intended with a new focus on “ordinary meaning” and ordinary people, rather than congressional “insiders.”  And contra Loper Bright, the Supreme Court creates new canons all the time—Chevron was not an outlier in that regard. And despite the stare decisis discussion in the opinion,, the Court does not usually treat canons as precedents or as common law that can be overruled.

  As to Chevron’s “unworkability,” as the Court charged, any unworkability associated with Chevron was due to the Court’s own failure, across all of statutory interpretation, to create any predictable hierarchy of interpretive rules with stare decisis effect and the Court’s decisions to make ambiguity trigger most of the Court’s interpretive doctrines. Chevron shared those features—a lack of interpretive order and an ambiguity threshold—with many other interpretive rules, to be sure, but only because Chevron itself famously turned on the “traditional tools of statutory interpretation,” not because of something inherent to Chevron. The Court itself created this unworkable regime for all statutory questions. Chevron’s demise will not cure it.

  If one takes Loper Bright’s pronouncements about statutory interpretation seriously, most of the Court’s interpretive practices are now invalid because they fail the tests the opinion announces. It does not seem plausible that the Court intended that kind of ripple effect.  A critical part of any inquiry into statutory interpretation is what the prevailing theory tells us about the interbranch relationship. Loper Bright is purportedly an opinion about precisely that, but the Court’s inconsistent pronouncements obscure, rather than clarify, any theory of statutory-interpretation separation of powers. The stakes are especially high, as Loper Bright transfers even more interpretive authority to courts. It is more important than ever that statutory interpretation have a legitimate foundation.

The Law of Conservation of Judgment

Andrew Coan

 (coauthored by Harry Surden)

At least since Jeremy Bentham, legal formalists in the Anglo-American tradition have dreamed of making the law clearer, more precise, and predictable in its application, with the ultimate goal of limiting or eliminating the human subjectivity of judging. The strongest versions of this "legal formalist" project envisioned a system of laws that could be applied by a machine, with perfect reliability and no trace of personal, political, or other bias—and no exercise of the fallible faculty of human judgment.

Enter ChatGPT and other LLMs—a new form of generative artificial intelligence that has received tremendous attention since the public launch of ChatGPT 3.5 in late 2022. In just two short years, these models have improved and proliferated at an astonishing pace. With some important caveats, they are now capable of outperforming most humans at many complex cognitive tasks, including the bar exam and medical licensing exams.

But using AI to interpret the Constitution (or decide other legal questions) does not eliminate the need for normative judgment. It simply shifts those judgments to different stages of the decision-making process. Like matter or energy, judgment in constitutional interpretation can be shifted around, dispersed or concentrated. It might be transferred from one decision-maker or one stage in the decision-making process to another. But when it is squeezed out of one part of the interpretive process, it inevitably pops up somewhere else. We call this the law of conservation of judgment.

For a fuller explanation, you can read our new paper, “Artificial Intelligence and Constitutional Interpretation.”

How AI Learned to Talk

Andrew Coan

(coauthored by Harry Surden)

There is probably no single definition of artificial intelligence that most scholars would agree to. However, one practically useful definition of AI is "using computers to solve problems, make predictions, answer questions, generate creative output, or make automated decisions or actions, on tasks that when done by people, typically require 'intelligence.'" In this view, we can think of AI in terms of particular tasks that we associate with human intelligence, and whether we are able to fully or partially automate these tasks using computers.

Starting in the 1950s and continuing through the 1980s, AI was largely focused upon computer rules and knowledge representation. The goal was to represent different aspects of the world using expert knowledge manually encoded in formal programming languages that computers could easily process. For example, in medicine, such systems aimed to codify the diagnostic knowledge and processes of doctors into formal computer rules, allowing computers to sometimes deduce non-obvious diagnoses. Although this early symbolic AI approach achieved some successes, its limitations became quickly apparent: hand-coded expert rules about law, medicine, or other phenomena were often "brittle" in the sense that they couldn't handle exceptions, non-standard "hybrid" scenarios, discretion, or nuances.

A new AI era began in November 2022 with the release of ChatGPT 3.5 by OpenAI. Much to the surprise of most AI researchers, this was the first AI system that could sensibly react to and analyze just about any textual input or document. ChatGPT was an example of a large language model (LLM), a type of AI natural language processing system that was designed to generate coherent, human-like text. Through "training" on billions of pages of previously written human pages available on the internet and elsewhere—including various legal documents such as federal and state statutes, court decisions, contracts on sites like EDGAR, and legal motions—these AI models learned to understand and generate language in a way that closely simulated human-like writing.

To be clear, ChatGPT 3.5 was not always accurate in its responses or analysis—it suffered from well-known accuracy problems and a tendency to make up facts—a phenomenon known as hallucination. But factual accuracy was not even the biggest technical hurdle for such AI systems prior to that time. Rather, going back to November 2022, LLMs prior to ChatGPT had much more severe limitations—these systems could not even respond sensibly to arbitrary inputs that were too far outside of their training. So, even though ChatGPT made factual and reasoning errors, what astonished AI researchers was that it could analyze and respond to arbitrary text of any kind sensibly at all.

Today, judges and others can use AI models to seek legal analysis and answers about constitutional and statutory interpretation, case law, and nearly any other legal question. Modern AI systems usually respond with coherent, well-reasoned, and persuasive text. We explore the implications in our new article, "Artificial Intelligence and Constitutional Interpretation." 

Gun Regulation When the Fourteenth Amendment was Ratified

Mark Graber

Originalism as practiced by historians, who by "original" mean "authentic," yields different results than originalism as practiced by the Roberts Court, who by "original" seem to mean "novel."  Consider the right to bear arms.

The July 7, 1866, edition of Harper's Weekly, the leading Republican/Union weekly of the Civil War/Reconstruction Era, set out the basic principle underlying gun regulation at the time when the Fourteenth Amendment had just been sent to the states for ratification.  The essay, "The Excise Law" relied heavily on what the author regarding as broadly shared understandings about dangerous weapons when explaining why alcohol could be regulated on the same basis as guns.  The basic principle was “The object of laws is public order, not private morality.”  This principle covered all arms.  Harper's Weekly opined,  

Society is of opinion that gunpowder is so dangerous a commodity that its storage and sale must be regulated by law.  It is idle to say that any man has the right to make gunpowder and sell it, and that society has nothing to do with it.  Society has the right of defending its order and safety, and must judge when they are threatened."

 Guns as well as gunpowder were governed by this standard.  The essay continued,

It would be hard to show that a glass of bad rum is not a weapon as dangerous to society as a revolver in the pocket or a keg of powder in a store.  If society, under certain conditions, may protect itself against these, it may defend in the same way against rum.

"The Excise Law" articulated basic principles of nineteenth century constitutional law (the best analysis is Howard Gillman's THE CONSTITUTION BESIEGED).  No one had a right to threaten the public safety.  When the public safety was threatened, government had the power to regulate.  The only substantial limit on regulation was that if the regulation distinguished between classes of people, the distinction had to be based on real differences between those classes and advance the public interest.  New York could ban children from owing revolvers, but not after the Thirteenth Amendment, African-Americans.

The originalists on the Supreme Court offer an original reading of this history, at least if original is understood as meaning "novel" rather than "authentic."  The justices in New York Rifle and Pistol Association, Inc v. Bruen (2022) and United States v. Rahimi (2024) insist that contemporary regulations are constitutional only Americans in 1791 and, maybe, 1866 regulated the arms in question or a closely analogous regulation was in place in 1791 or, maybe, 1866, no matter how dangerous the arms are recognized to be in 2024.  Republican/Unionists would not have recognized this original interpretation of the constitutional right to bear arms.  If the government thought a weapon, a drink, or anything else, threatened the public, government could regulate.  Perhaps good policy reasons nevertheless exist for recognizing a constitutional right to dangerous weapons that were not thought dangerous in 1866, but such arguments did not occur to Harper's Weekly or, seemingly, other Republicans when the Reconstruction Amendments were framed.

The Procedural Turn’s Faith in Elite Judgment

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Aziz Rana 

Kunal Parker’s The Turn to Process is a wonderful reconstruction of intellectual life in the United States over the twentieth century.  It explores how scholars across fields of law, political science, and economics confronted the modernist crisis of meaning that shaped Euro-American societies.  In particular, the late 1800s and early 1900s saw a breakdown among intellectual and political classes in faith in the underlying foundations of collective life—judgments about the common good, moral certainty, and shared substantive truths.  In this context, scholars increasingly shifted toward an embrace of method as a way both of making sense of social experience and of imagining tools for restitching the social fabric.  As a result, they also re-grounded the legitimacy of their own fields—whether law, political science, or economics—on procedural techniques.  These techniques allowed the scholar to claim an expertise relevant for the ordering of social life regardless of the fracturing of faith in substantive truths.

From Stable Foundations to Dynamic Processes (and Back?)

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Ajay K. Mehrotra

Let me begin with my thanks to Jack Balkin for hosting this online symposium and for inviting me – long time Balkinization reader, first time contributor – to participate in this discussion.  Thanks, of course, also to Kunal Parker for writing such an important and stimulating book. 

I had the good fortune of reviewing portions of The Turn to Process when Kunal presented an overview of the book and the law chapter at an American Bar Foundation/Northwestern University Legal History Colloquium several years ago.  At that event, many of the participating faculty and graduate/law students were excited to read such a capacious history of modern American intellectual life.  Although some found the workshop paper a bit dense, everyone agreed that Kunal had embarked on a bold and ambitious research project. 

The published version of The Turn to Process validates those earlier sentiments.  Kunal has completed a stunning and sweeping history of how a certain segment of American legal, political, and economic thinkers reoriented their respective fields away from stable notions of “truths, ends, and foundations” toward dynamic “methods, techniques, and processes.” In doing so, he makes several contributions to the existing literature by complementing and at times challenging some of the most canonical works in American intellectual history, especially by uncovering the multiple meanings of “the turn to process” and by re-periodizing our conventional understanding of this otherwise familiar story about change over time.

Historicizing History?

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Paul Gowder

It surprised me that the most interesting part of The Turn to Process was the conclusion, in which Parker turns his gaze from law, political science, and economics to history itself—and in effect historicizes the practice of historicizing.

By “the practice of historicizing” I mean what Parker vividly describes as the process where historians try to undermine ideas by placing them in social context. In his apt words: “As historians place object after object in a social-historical context, they render such objects ‘contingent,’ [and] weaken or impair their claims over us[.]” For those of us in other disciplines (and especially the normative and conceptual ones, including law, who lack ready resort to the self-defensive tool of “we’re just doing empirical observation”) the process of experiencing core ideas in one’s field getting subjected to this process of historicizing can be experienced as an annoying bit of disciplinary imperialism, and Parker captures exactly why in his discussion of the historian’s disregard of the truth claims of other fields.

The Turn to Process in Comparative Context

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Amalia D. Kessler

Kunal Parker’s The Turn to Process is a sweeping intellectual history of great ambition. Spanning the period between 1870 and 1970, the book draws on a remarkable depth of erudition to argue that American thought leaders across the domains of law, politics, and economics responded to the challenges of modernism by embracing methods, procedures, and processes. By converting substantive truths into procedural techniques, these scholars were able to establish forms of disciplinary authority that were immune to the corrosive effects of the modernist predilection for subjecting truth to historical and psychological critique. Grand in scope, Parker’s book also shines in its illuminating close readings, which bring to light the surprising parallels between seemingly quite distinct textual traditions. In all these respects, the Turn to Process is an important contribution that promises significantly to reshape the boundaries of scholarly debate across a range of disciplines.

Artificial Intelligence and Constitutional Interpretation

Andrew Coan

Harry Surden and I have posted a new paper to SSRN titled "Artificial Intelligence and Constitutional Interpretation." Here is the abstract:

This Article examines the potential use of large language models (LLMs) like ChatGPT in constitutional interpretation. LLMs are extremely powerful tools, with significant potential to improve the quality and efficiency of constitutional analysis. But their outputs are highly sensitive to variations in prompts and counterarguments, illustrating the importance of human framing choices. As a result, using LLMs for constitutional interpretation implicates substantially the same theoretical issues that confront human interpreters. Two key implications emerge: First, it is crucial to attend carefully to particular use cases and institutional contexts. Relatedly, judges and lawyers must develop "AI literacy" to use LLMs responsibly. Second, there is no avoiding the burdens of judgment. For any given task, LLMs may be better or worse than humans, but the choice of whether and how to use them is itself a judgment requiring normative justification.

You can read the whole thing here. 

What Law Schools Can Do, Part I: Teach Persuasion

David Super

     The great majority of legal academics are appalled at the nation’s verdict last week on former President Donald Trump and the Republican Party.  Despair is natural, and the urge to withdraw is all too tempting.  Many of us enjoy sufficient privilege that we have the choice to abandon meaningful engagement with the nation’s problems and scholarly attention to the world as it is.  Tens of millions of people who stand to suffer under the new regime, however, lack any meaningful exit option. 

     For their sake, but also for our own, I hope we will take this as a signal to engage more, not less.  As it happens, law schools and legal academics are well-positioned to make crucial contributions to advancing justice in this country.  Moreover, much of what our country needs from us is entirely consistent with our roles as legal educators and with norms that law schools should serve, and advance inquiry by, faculty and students of all persuasions.  This is the first of a series of posts suggesting ways in which law teachers and law schools can effectively respond to the current crisis.

The Unbearable Lightness of Process in the Empire of Substance

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

John Fabian Witt

 In a world of earnest but inevitably middling scholarship, Kunal Parker has written a book worth writing, one that is worthy of the effort, redemptive of the genre, and rejuvenating for even the most jaded of weary readers.  The Turn to Process contends that central currents of social thought in the twentieth century adopted a posture of alienation from their subject.  Lawyers, economists, and political scientists, he contends, shifted to thinking not directly about social relations, but instead to thinking about social relations at one remove.  It was the process of human interaction, or the technique and method of managing it, that attracted the attention of social theory and social science, not social relations themselves.  In Parker’s thoughtful reconstruction, the result was a body of social theory beset by an undercurrent of self-estrangement.  The turn to process may have made a bid for hegemony.  But it also came with its own critique, producing a hunger for something more authentic, a bridling at its hypocrisies and its shallow therapeutics. 

            In one sense, the triumph of the procedural in twentieth-century legal theory is a puzzling phenomenon.  In 1980, at what was perhaps the high point for the so-called process school of constitutional law led by John Hart Ely, critics like the liberal Laurence Tribe and the leftist Mark Tushnet objected that process stories in legal theory obscured underlying substantive commitments.  Value-free adjudication based in process, to use Tushnet’s formulation, was impossible; process-perfecting theories, in Tribe’s words, could not banish the fights over substance that had brought them into being.  After all, what could explain the selection of one or another process other than the pursuit of some substantive social project?[1]

Balkinization Symposium on Kunal Parker, The Turn to Process

Guest Blogger

This week at Balkinization we are hosting a symposium on Kunal Parker's new book, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023)

We have assembled a terrific group of commentators, including Marianne Constable (Berkeley), Paul Gowder (Northwestern), Amalia Kessler (Stanford), Ajay K Mehrotra (Northwestern), Aziz Rana (Boston College), and John Witt (Yale).

At the conclusion, Kunal will respond to the commentators.

Trump’s aspiration isn’t Nazi Germany, it’s feudal Germany

Andrew Koppelman

President-elect Donald Trump’s victory has revived the accusation that he is a fascist. Some even fear that he will try to make himself dictator for life.

That notion misunderstands the danger Trump presents. He isn’t aiming or likely to recreate Nazi Germany. Medieval Germany is closer: a collection of unaccountable fiefdoms in which local barons are free to abuse their subjects at will.

I elaborate in a new column at The Hill.

The Brits Let Me Down

Bruce Ackerman

The Brits decided that the American election wasn't sufficiently interesting to warrant around-the-clock coverage -- so the decided to end their broadcast at the stroke of midnight. Since I was supposed to join the conversation at 12:20, they responded to my clicks with an apology -- which I extend to anybody who searched for my comments and found a void. 

My Interview on Times Radio

Guest Blogger

Bruce Ackerman

I’ll be live on air with @CalumAM on @TimesRadio at 12:20am ET reacting to the results from the US election as they roll in… Tune in at times.radio and on YouTube where you can watch all the action too.. https://www.youtube.com/@ListenToTimesRadio 

Shifting Standards for What Constitutes a Dispute

David Super

      As we enter a day of suspense, likely followed by many more of disputes should former President Trump lose, I am struck by the divergence in our nation’s standards for what constitutes an adjudicable dispute.  Our judiciary, long led and now dominated by conservatives, has been steadily narrowing what claims may receive full consideration.  By contrast, the former President and his supporters, also wanting to be seen as conservatives, adamantly insist on greatly broadening the definition of a legitimate dispute.

Just Security pod on historical threats to democracy and January 6

Corey Brettschneider

 I spoke with Tom Joscelyn, a principal author of the House January 6 Report, on the Just Security Podcast about my new book, The Presidents and the People. We talk about historical threats to democracy as well as Trump's attempted self coup. The link is here: https://www.justsecurity.org/104473/presidents-people-book-podcast/

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Corey Brettschneider, Brown University

www.coreybrettschneider.com

The crumbly philosophical foundations of Trumpism

Andrew Koppelman

 To the extent that Trumpism has any intellectual basis, it's that articulated by J.D. Vance, and Vance's principal philosophical guru appears to be Patrick Deneen. I explain what's wrong with Deneen, philosophically and at the policy level, here.

Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Jeremy Kessler's forthcoming article, Law and Historical Materialism. 

1. Jack Balkin, Introduction to the Symposium

2. Sam Moyn, Marxism as a Rallying Cry

3. Paul Gowder, In Praise of Humble Social Theory

4. Brian Leiter, Some Notes on Historical Materialism, Naturalism and Legal Theory, Part I

5. Brian Leiter, Some Notes on Historical Materialism, Naturalism and Legal Theory, Part II

6. Matthew Dimick, Linking Capitalism and Legal Change: Function versus Form

7. Yochai Benkler, The transhistorical dormitive principle at its foundation makes MHMAL the wrong social theory for LPE

8. Eva Nanopoulos, The Minimalism of the Minimalist Historical Materialist Approach to Law (MHMAL): A (Puzzled) Marxist View

9. Talha Syed, Law and the Critique of Political Economy

10. Jeremy Kessler, Law and Historical Materialism: A Reply to Critics – Part I

11. Jeremy Kessler, Law and Historical Materialism: A Reply to Critics – Part II

In praise of the Washington Post’s cowardice

Andrew Koppelman

The Washington Post deserves our gratitude for its craven, contemptible decision not to endorse any presidential candidate.

I explain in a new column at The Hill.

Law and Historical Materialism: A Reply to Critics – Part II

Guest Blogger

For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism.

Jeremy Kessler 

In Part I of this Reply, I addressed objections to the naturalistic and transhistorical character of the minimal historical materialist account of law (“MHMAL”). MHMAL is naturalistic in that it: (a) takes the relationship between human and non-human nature to provide the ultimate, explanatory foundation of law and legal development; and (b) assumes that the causal structure of this relationship is uniquely accessible to empirical scientific inquiry. MHMAL is transhistorical in that it seeks to explain law and legal development by reference to individual and collective human propensities that are effectively invariant across historical epochs. Part II of this Reply considers how these commitments shape MHMAL’s understanding of the place of class struggle and ideology in the explanation of law and legal development. 

Several symposium contributors take MHMAL to task for marginalizing class struggle[1] and ideology[2] in its explanatory scheme. Although Law and Historical Materialism addressed both phenomena, it gave pride of place to others: on the one hand, the primacy of the development of the productive forces in explaining law and legal development; on the other hand, the potential role that “nonfunctional determinations” – such as aspects of culture and environment unrelated to a particular development of the productive forces – might play in such explanation. I am more confident about the explanatory primacy of the productive forces than about MHMAL’s openness to so-called nonfunctional determinations. But I will try to clarify why I think that the historical materialist explanation of law and legal development might be stuck with both, even as it accords significant roles to class struggle and ideology as well.

Taking "Offers to Pay for Registering" Seriously (Probably a Mistake)

Mark Tushnet

Perhaps mistakenly (because almost certainly the pro-Musk/Trump side isn’t really concerned about legal details), in trying to think about the X flap over Musk’s lottery offer, I began to wonder about the possibility of a difference between lay and lawyers’ ways of interpreting statutes. Here, with excisions, is the relevant language: 52 U.S.C. 10307(c): “Whoever knowingly or willfully … pays or offers to pay … for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both…” I’m pretty sure that the “controversy” isn’t over whether giving someone a ticket to a lottery counts as “payment”: in lawyers’ terms, and probably in lay terms, it’s something of value (you could sell your lottery ticket to another sucker and buy a candybar).

So, the “controversy” is over the meaning of the words “for” and “offer.” “For” first: Suppose you announce that starting tomorrow you’ll pay any registered voter $5. The day after tomorrow someone comes up to you and shows you a voter registration card dated tomorrow (that is, after the voter learned of your offer). You give her $5. Have you paid her “for” registering? I’m pretty sure that most lawyers and lay people would say, “Yes.”

The next person in line shows you a voter registration card dated three years ago (and still valid). You give her $5. Have you paid her “for” registering? Or, have you paid her for having registered? And is paying someone for having registered where the person had no expectation of payment at the time of registration covered by the statute, that is, the same thing as paying someone for registering after knowing of the offer of payment? If there’s a good faith disagreement here, it’s that many lawyers are comfortable in saying that paying someone for having registered, without expectation of payment, is covered by the statute and many lay readers think the difference between having registered without such expectation and registering after learning of the offer matters.

Does “offer” matter? Suppose Musk says to the person who registered three years ago, “Sorry, you’re not covered by my offer,” and gives $5 to the other person. I’m pretty sure that most lawyers and lay people would say that Musk construed his words as an “offer to pay” people “for” registering. What if he said to the one who registered after learning of the offer, “Sorry, you’re not covered by my offer.” I’m reasonably confident, though not quite sure, that most lawyers and lay people would say that he hadn’t offered to pay people for registering. That is, in this context both groups would distinguish between “for registering” and “for having registered.”

Finally, what if Musk says, “I don’t care when you registered, you each get $5.” Was his initial offer, which didn’t specify when the registration occurred, an offer to pay for registering? My guess is that this is where the lawyer-lay divide kicks in (if it does in good faith). Many lawyers would say, “Of course this is an offer to pay for registering—at least as long as there’s even one person who registers after learning of the offer and seeks payment. And (if it matters) we think it probably would be OK for the burden to be placed on the defendant to show that no such person existed.” If there is good-faith lay disagreement, it’s because lay readers think that you’re not offering to pay someone for registering if (lots of) people fall within the offer’s coverage even though they registered before the offer was made.

The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It

Corey Brettschneider

On Monday, October 21, the Harvard Safra Center will host an event on my new book, The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It.

In the book, I argue that the presidency has always posed a threat to American democracy, a threat seen in Patrick Henry's warning about how weak the supposed formal checks on the office would be if a president with authoritarian ambitions came to power.

Specifically, I show, in a series of case studies, that we have seen that threat play out multiple times when presidents with authoritarian understandings of the Constitution have come to power. John Adams waged war on the national press of the early republic, overseeing numerous prosecutions of his critics. In the lead-up to the Civil War, James Buchanan colluded with the Supreme Court to deny constitutional personhood to African Americans. A decade later, Andrew Johnson urged violence against his political opponents as he sought to promote a white supremacist republic after the Civil War. In the 1910s, Woodrow Wilson modernized, popularized, and nationalized Jim Crow laws. In the 1970s, Richard Nixon committed criminal acts that flowed from his corrupt ideas about presidential power. The actions and ideas of these leaders illuminated the dangers posed to democracy by the American presidency.

But I also argue these presidents didn’t have the last word; citizen movements brought the United States back from the precipice by appealing to a democratic understanding of the Constitution and pressuring subsequent reform-minded presidents to realize the promise of “We the People.” I profile the citizens-the newspaper editors prosecuted by Adams, Frederick Douglass, Ida B. Wells, Daniel Ellsberg, and more-who fought back against presidential abuses of power. Specifically, I argue that these figures helped lead "democratic constitutional constituencies" that prevailed upon recovery presidents to put back in place the norms and institutions damaged by authoritarian presidents. It is this citizen-led political check, rather than the supposed checks of impeachment and judicial review, that has often led to the recovery of American democracy.

I hope the book will be of interest to a wide group of academics as the book speaks to debates about popular constitutionalism, presidential power, and constitutional theory.

Power for the People: Recognizing the Constitutional Right to Vote for President

Guest Blogger

Charlie Martel

Recently, I’ve argued for a federal constitutional right to vote for president. No court has yet held that citizens have an independent federal constitutional right to vote for president. In fact, the Supreme Court has twice held that under the Constitution, states have such “plenary power” to choose presidential electors that they can exclude citizens from voting for president. The Supreme Court cases rejecting the citizens’ right to vote for president are wrong for five reasons.