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, a 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/

---------------

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.

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

Guest Blogger

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

Jeremy Kessler

I am indebted to the seven legal scholars who engaged so thoughtfully with Law and Historical Materialism, and to Jack Balkin for hosting a symposium on the article. As the symposium contributions make clear, Marxist legal thought remains a useful tool for studying the causal relationship between law and extra-legal social and natural phenomena. As the symposium contributions also make clear, there exists significant disagreement about the precise content of Marxist legal thought. For that reason, the article does not claim that its “minimal historical materialist account of law” (MHMAL) is a faithful rendering of Marx’s own understanding of law. Nor does the article claim that MHMAL offers a comprehensive overview of past or present Marxist legal thinkers. Instead, the article presents MHMAL as an interpretation of Marxist legal thought, an interpretation that aspires to be relatively simple, usable in legal and historical research, and consistent with other beliefs that left-leaning legal scholars hold about the world. That last criterion has occasioned the greatest pushback, which strikes me as all to the good. Such pushback reveals deep divisions within a scholarly community that might otherwise understand itself as united by the deficiencies of alternative frameworks – whether law and economics, critical legal studies, etc. To air these differences and, in doing so, to dissipate a false sense of intellectual unity, may be the symposium’s most significant, collective contribution. 

Notwithstanding the virtues of difference, I will begin with agreement. First, Sam Moyn and Eva Nanopoulos are right to suggest that the ultimate antagonist of MHMAL is not critical legal studies or law and political economy but the mainstream of Western Marxism. I agree with Moyn that CLS and its successors are best understood as offering variations on a set of themes that have dominated Western Marxist thought for the past seventy-five years. The critique of economic determinism, the emphasis on agency and contingency, the suspicion of naturalism – the leitmotifs of CLS and its successors are the leitmotifs of Western Marxism more generally. By presenting MHMAL as a Marxist alternative to CLS and its successors, I was indeed deferring a debate about MHMAL’s heterodoxy in relation to Western Marxist orthodoxy. Moyn and Nanopoulos fairly take me to task for not acknowledging and justifying this heterodoxy. I will try to do so more fully below. For now, I only want to note that while Law and Historical Materialism offers a heterodox interpretation of Marxist legal thought, that interpretation is neither especially US-centric nor entirely alien to the Western Marxist tradition. To the contrary, the article seeks to identify something of a dissenting tradition within and at the boundaries of Western Marxism, a dissenting tradition that places the interplay between human and non-human nature at the foundation of its understanding of law. As none of the contributors fail to note, G.A. Cohen’s semi-repudiated Karl Marx’s Theory of History is a major contributor to this tradition. But so too are a range of works by French, German, Italian, Nigerian, and Russian scholars on whom the article draws. 

A second source of agreement was more surprising to me. Most of the symposium contributors agree that strong avowals of the indeterminacy, contingency, and/or autonomy of law are neither consistent with historical materialism, broadly construed, nor especially useful for left-leaning legal thought and practice. Contribution after contribution affirm that the form and content of law is heavily determined by extra-legal social conditions, and, consequently, that law develops in a manner that is heavily determined by developments in those extra-legal social conditions. Whether legal relations should be understood as basal or superstructural, whether law should be understood as a species of ideology or as shaped by ideology, whether law is a terrain on which class struggle occurs or a tool deployed by contending class fractions – these distinctions are not insignificant, but they are secondary to the general sense that law and legal change ought to be explained by reference to extra-legal social phenomena.[1] Such agreement is consistent with Moyn’s intuition that what left-leaning legal scholars need and want is, after all, a social theory of law. 

Given all this agreement, where do the deeper divisions lie? All over the place, but I will focus on four sites where disagreement seems to be most intense and sustained. First, should a historical materialist account of law seek to explain the social conditions of law in terms of even more fundamental natural conditions? Several contributors take MHMAL to task for adopting a relatively naïve, naturalistic perspective, in which law and legal development are ultimately attributable to human beings’ relationship to, and struggle with, the non-human world. Second, should a historical materialist account of law admit transhistorical elements into its explanation of law and legal development? Several contributors take MHMAL to task for explaining law and legal development in transhistorical terms – such as relatively innate individual and collective human propensities. Third, what role should class struggle play in a historical materialist account of law? Several contributors take MHMAL to task for underemphasizing class struggle and overemphasizing the development of the productive forces in its explanation of law and legal development. Fourth and finally, what role should ideology play in a historical materialist account of law? Several contributors take MHMAL to task for saying too little about ideology, instead emphasizing other sources of complexity and constraint. 

In the remainder of Part I of this Reply, I will try to clarify my understanding of the naturalistic and transhistorical aspects of historical materialist explanation. A second post will take up the role of class struggle in legal development, and the relationship between law and ideology. Throughout both Parts, I will indicate where my understanding of these issues seems to overlap with or diverge from the perspectives of various symposium contributors. With respect to the naturalistic and transhistorical character of MHMAL, there is significant overlap between Brian Leiter’s perspective and my own. Even with respect to the question of class struggle, Leiter and I agree that the outcome of class struggle must ultimately be explained in terms of contending classes’ more or less “effective” use of the productive forces. As for ideology, the MHMAL’s approach lies somewhere between Leiter’s and Matt Dimick’s. It is harder to quantify the relative degrees of overlap and divergence when it comes to the other contributions, although I suspect that my clarifications will be comparatively more acceptable to Moyn, Paul Gowder, and Dimick than to Yochai Benkler, Nanopoulos, and Talha Syed. I will nonetheless suggest that Benkler’s account has at least a bit more in common with MHMAL (and Leiter) than one might think on a first read. 

A. Naturalism in Historical Materialist Explanation

Brian Leiter’s two-part symposium contribution offers several useful corrections to Law and Historical Materialism’s discussion of naturalism. I agree that all that MHMAL needs to be committed to is methodological, as opposed to substantive, naturalism, and that Law and Historical Materialism should have avoided suggesting that Marx himself was a substantive naturalist. Nonetheless, as Leiter’s own reconstruction of Marxist thought demonstrates, a commitment to methodological naturalism has real bite. Methodological (or M-) naturalists: 

refer the answers to all metaphysical questions to the scientific methodologies that are most successful at prediction and (in the case of historical sciences, like evolutionary biology) explanation.  For the M-Naturalist, if you want to know what exists, turn to empirical science, not philosophy. M-Naturalists then seek to emulate successful scientific methodologies, which means some amalgam of (i) drawing on established scientific results; (ii) collecting empirical evidence of their own; (iii) appealing only to well-established causal mechanisms in offering explanations; and (iv) engaging in inductive and abductive inferences over the evidence. 

Many Western Marxists – and, I imagine, many symposium contributors – would find this approach insufficiently critical of the social bases of scientific knowledge. I myself would soften Leiter’s deflationary account of the social construction of scientific knowledge: “Credible scientific theories of nature do not survive unless they are predictively successful, and they are not predictively successful unless they identify the actual causal structure of the world.” The determination that a scientific theory is “predictively successful” is the outcome of a social process.[2] Some scientific theories persist for a long time despite their failure to satisfy a certain metric of predictive (or explanatory) adequacy.[3] Nonetheless, I agree with Leiter that empirical scientific inquiry proceeds from the assumption that there is an “actual causal structure of the world,” and that historical materialism proceeds from the same assumption. 

Accordingly, when Law and Historical Materialism talks about “the social construction of nature,” it is indeed referencing what Leiter calls “causal” and “category” social construction and not “idealist” social construction. But it is precisely because a great deal of Western Marxist and contemporary left-leaning legal thought flirts with idealist social construction that I believe it is important both: to defend what Leiter describes as the “trivially true” alternative; and to identify a dissenting tradition within Western Marxism that thoughtfully critiques the idealist temptation.[4]  Leiter – and his student Lawrence Dallman – clearly can be counted as members of this dissenting tradition.[5] 

So we agree that there is an actual causal structure of the world. We also agree, I think, that the historical materialist account of law should strive for consistency with what empirical scientific inquiry learns about the actual causal structure of the world. What assumptions and hypotheses about that structure does MHMAL make? Leiter suggests that MHMAL should dispense with an assumption about human nature that it inherits from G.A Cohen’s version of historical materialism: “that human beings are always striving to increase productive power.” Instead, MHMAL should follow more carefully the lesson of Darwinian theory. All it needs to assume – or hypothesize – is that “when technological innovations occur that enhance productive power (the analogue of genetic mutations in the Darwin case) . . . the relations of production and ideological superstructure will change . . . to accommodate and support the exploitation of those productive forces [affected by the technological innovations].” “[T]hose changes” to the relations of production and ideological superstructure will, in turn, “predominate in the population affected by the technological advance.” 

I am happy to accept this redescription of how MHMAL might explain the relationship between technological and legal change. But I do not think it frees MHMAL – or Leiter’s account of Marx – of certain assumptions about human nature and human society. If one asks why the relations of production and ideological superstructure change to accommodate and support the exploitation of newly productive productive forces, the answer is going to have something to do with the propensity of humans – whether human individuals or human collectives – to favor or to be benefitted by enhanced productivity. I will make a similar argument when it comes to Leiter’s account of class struggle. I do not think Leiter’s account, Marx’s account, or my own can be stripped of a particular set of anthropological assumptions. Such assumptions are the source of much of the criticism that Western Marxists – and left-leaning Anglophone legal scholars – have historically directed at accounts such as Leiter’s and my own. 

For instance, neither Leiter nor I would object – I don’t think – to Talha Syed’s argument that the proper focus of “denaturalizing critique” is “to point to the ways that something that is social, and historical, is falsely imputed to asocial, or transhistorical, natural givens.” This form of critique is wholly consistent with Leiter’s worldview and my own. But the question remains what phenomena are truly imputed to asocial, or transhistorical, natural givens. One gets the sense that Syed would accept as true few if any claims about the explanatory power of “asocial, or transhistorical, natural givens.” Yet a historical materialist cannot do without them.[6] Similarly, neither Leiter nor I would object – I don’t think – to Yochai Benkler’s definition of productivity as “the capacity to turn nature into more of what people need and want with a given set of resources and labor,” or his insistence that the “continuous intensification of productivity” is a distinctive feature of the “historically unprecedented dynamics of capitalism,” dynamics ushered in by the generalization of commodity exchange.[7] Yet I also want to understand the extent to which the human “capacity” – and maybe even the human propensity – “to turn nature into more of what people need and want with a given set of resources and labor” contributed to the generalization of commodity exchange that unleashed the unprecedented dynamics of capitalism. To the extent that such capacities and propensities remain essential features of what it means to be human, that socio-physical fact ought to have some bearing on efforts to explain both the persistence of capitalism and potential pathways beyond it. 

When I drafted Law and Historical Materialism, I did not have the benefit of the American philosopher Vanessa Wills’s recent book, Marx’s Ethical Vision. Whether or not one agrees that Marx had an ethical vision, or with Wills’s reconstruction of it, the book makes the case for “a historical materialist account of human nature” with exceptional clarity.[8] Wills’s account begins by recognizing that: “Humans are natural beings in the sense that they are biological beings of a certain sort. In particular, they are mammals, with a particular anatomy, particular metabolic processes, and particular history of evolutionary development that has led to their emergence as a distinct biological species.”[9] What makes this species distinct is its propensity to “labor,” which Wills defines as “human beings’ goal-directed intervention into their natural and social environment, an intervention that humans initiate in order to satisfy their needs, and through which they necessarily transform their environment and themselves in the process.”[10] It is the human labor process that creates history; but this very fact entails something transhistorical about human beings, their labor, and what that labor produces. 

Before turning to the question of MHMAL’s transhistorical tendencies, I want to acknowledge that both Leiter and Moyn express reasonable discomfort with my suggestion that the only alternative to MHMAL’s naturalism is Thomas Nagel’s critique of the neo-Darwinian synthesis or the advocates of intelligent design. Perhaps that suggestion was rhetorically extravagant. But my rhetorical posture stems from a belief that historical materialists committed to methodological naturalism and the explanatory primacy of the productive forces tend to understate the strength of those commitments. Such commitments certainly allow for interpretations of human freedom distinguishable from divine intervention, and for a variety of solutions to the mind-body problem, but they exclude social theoretic approaches that reject the explanatory primacy of the productive forces or the belief that the world has one, actual causal structure uniquely accessible to empirical scientific inquiry. 

B. Transhistorical Aspects of Historical Materialist Explanation           

While several contributors raise concerns about MHMAL’s transhistorical aspects, Benkler’s critique is the most thoroughgoing. As the previous discussion of naturalism suggests, my view is that a historical materialist account of law cannot do without at least a few transhistorical assumptions. I have the further intuition that Benkler’s own approach is not bereft of transhistorical assumptions either. If that’s right, then our primary disagreements concern whose transhistorical assumptions are more plausible, and how relevant anyone’s transhistorical assumptions should be when it comes to explaining specific legal developments. Nor may that second disagreement turn out to be all that divisive. Benkler is surely right that his fine-grained explanation of the rise and fall of the Statute of Artificers is preferable, in most respects, to G.A. Cohen’s impressionistic sally, which I should not have used as the sole example of how MHMAL might work in practice. Nonetheless, there are costs to the version of historicism that Benkler commends. 

I will begin with some minor caveats about Benkler’s account of the Statute of Artificers because summarizing that account tees up our broader disagreements about transhistorical explanation. In addition to his meticulous research, what enables Benkler so deftly to balance constraint, complexity, and agency in his account of the Statute of Artificers of 1563 is the assumption that by the middle of the previous century, England was a capitalist society. With that assumption in place, the “institutionally imposed structural dynamics” that we associate with capitalism – market dependence for both subsistence and production, the “imperative” to pursue “profit on pain of losing your access to the means of production,” and the resulting political “influence of the profit-reaping classes” – go a long way to organizing the historical data that Benkler puts at our disposal. The Statute of Artificers and related legislation embodied “the competing demands, and lobbying, of major already-powerful capitalist sectors: urban trade and textile manufacture, on the one hand, and an emerging agricultural capitalist sector, farming reliant on wage labor in large commodity farming oriented farms, on the other hand.” The “social stabilization program” these capitalists put in place in in the middle of the sixteenth century “survived until the end of the 18^th century, when the Smithian government of William Pitt the Younger led far more liberalizing reforms.” “Not a shred of feudal remnants in sight; nor of ‘productive forces’ ineluctably forcing their demise.” In other words, sometime between 1350 and 1550, capitalist social relations emerged and became dominant, along with the rural and urban capitalist classes themselves. Then, between 1563 and 1694, when the Statute of Artificers was partly repealed, “[n]othing important changed.”[11]

Some of Benkler’s own data, such as the “compression in real income distribution and rising rural standards of living” between 1650 and 1750, could be read as cutting against this insistence on a macro-stable – if characteristically crisis-ridden – social structure. Benkler attributes these economic phenomena to a combination of the legislative compromise that rural and urban capitalists brokered in 1563 and “continuous agricultural productivity growth.” Elsewhere, however, Benkler himself has placed more emphasis on punctuated technological change – in particular, the transmission to England of new agricultural tools and techniques by Dutch refugees beginning around 1568, five years after the Statute of Artificers was enacted.[12] These imports bear significant responsibility for the “revolutionary productivity gains” witnessed thereafter.[13] That is no reason to think that the putatively intra-capitalist legislative compromise that Benkler emphasizes in his symposium contribution did not also contribute to productivity gains, just as it took time for new agricultural tools and techniques to make their mark.[14] Yet a great deal was changing in the 1600s: in particular, the percentage of the English population living in large towns and cities more than doubled, and a second wave of Dutch technological imports further transformed English society and economy – particularly in the realms of manufacturing and transportation.[15] It seems reasonable to hypothesize that these developments might have contributed to the sort of de facto supersession of mid-sixteenth-century labor regulation that Cohen had in mind, as well as to the gradual institutionalization of “Smithian ideology” in the eighteenth century. More research would be necessary to make good on this alternative hypothesis.

For now, I want to make two more general points – one empirical, one theoretical – about Benkler’s starting point. That starting point is capitalism in the saddle. Since we know that capitalism was the law, so to speak, of the land, it makes sense that the Statute of Artificers was brokered by the leading capitalists of the day in pursuit of the profits that capitalist social relations required them to pursue. I have no objection to reasoning in this way – from macro-historical (if emphatically not transhistorical) social structure to the explanation of the behavior of social actors and the legal outcomes that their behavior produced. Nor do I have any doubt that Benkler has plenty of evidentiary support for his analysis of the social structure that obtained in 1563 and of the most influential actors within that structure. Nonetheless, Benkler’s treatment of mid-sixteenth-century England as a mature capitalist society– “[n]ot a shred of feudal remnants in sight” – is far from uncontroversial.

Benkler’s chronology roughly tracks that of the historian Robert Brenner, whose “historical-institutional political Marxism” Benkler commends as a subtler alternative to the Marxism on offer from MHMAL and Cohen. Benkler’s own approach is more subtle still, drawing on Veblen, Polanyi, DuBois, Pinchbeck, and a host of others. Furthermore, Benkler’s independent reading of early modern sources and scholarship avoids Brenner’s (and Ellen Meiksins Wood’s) tendency to overstate the role of the English countryside in the emergence of capitalism. Nonetheless, a range of liberal, institutionalist, and Marxist scholars have lodged powerful objections to the identification of a mature capitalist society in fifteenth and sixteenth century England.[16] I emphasize “mature,” because Benkler needs a fully operational capitalist “structure” in place to motivate his story of a durable, intra-capitalist compromise in the early 1560s. I agree with those scholars who cannot locate such a structure in the period when Benkler needs it to exist.[17] What I see instead is an uneven and combined development of capitalist social relations, with those relations gradually achieving dominance over feudal ones between the mid-sixteenth and the mid-eighteenth centuries. The “liberalizing reforms” described by Benkler in the late eighteenth century memorialized that dominance, although they certainly did not cause it. 

This empirical disagreement is relevant to our theoretical disagreements concerning transhistorical explanation in the following way. Benkler takes MHMAL to task for adopting “a profoundly, irreducibly transhistorical account of human nature no different from the transhistorical account of Smithian ideology.” More generally, Benkler argues that transhistorical dynamics are not the place to look for constraints on individual or collective human agency in historical explanation. Instead, it is “the historically specific structure of the society and time” that typically prevents an “individual choice” from becoming a “population-level social practice.” What Benkler means by “historically specific structure” is a set of sufficiently entrenched “social relations” or “institutions.” And it is these sufficiently entrenched social relations or institutions that constrain – and explain the constraints on – transformative human decision-making at a particular time and place. In the case of the Statute of Artificers, recall, it is the distinctively capitalist structure of sixteenth century England that ultimately explains the existence of the urban and rural capitalists and why they crafted the legislative compromise that they did. 

I have three reservations about such an anti-transhistorical social theory. First, I am not sure it can explain how capitalist “structure” came into being. Second, and relatedly, I am not sure how it deals with the possibility – mooted above – that sixteenth century England featured a mix of capitalist and feudal social relations without an obviously dominant social-structural logic. In the absence of such a dominant logic, from where does the social theory derive constraint and the explanation of constraint? Third, to the extent that such an anti-transhistorical social theory can explain how capitalist structure came into being, I doubt it can do so without resort to transhistorical elements of its own. 

With respect to the first two reservations, it might be the case that some pre-existing social structure – such as a feudal social structure, dominated by feudal social relations or institutions – is replaced all at once by a capitalist social structure, dominated by capitalist social relations or institutions. Or it might be the case that capitalist social relations gradually appeared within a society previously constituted exclusively or primarily by feudal social relations, and then gradually, for whatever reason, edged out the previously dominant feudal relations. In either case, we still need to explain the process by which the eventual dominance of capitalist social relations came about. In explaining this process and its outcome, however, we are not able to appeal exclusively to the constraints imposed by feudal or capitalist social structure. This is because the logic of the process by which one structure of social relations ceases to be dominant, and another structure of social relations becomes dominant, is what we are after. Accordingly, I think we need something like a structure of structures – or, rather, a transhistorical structure – that imposes constraints on the transition from one social structure to another. 

On Benkler’s account, it seems to be the existence of a society-wide structure – a set of dominant social relations or institutions – that generates the historical field within which non-transhistorical explanation takes place. (Something similar could be said about Syed’s implicit philosophy of history.) If that’s right, then the transition between one society-wide structure and another is a transhistorical process. Class struggle is one obvious candidate for such a transhistorical process – a process in which the classes generated by one society-wide structure come into increasing conflict, a conflict that eventually results in the victorious class’s construction (or at least superintendence) of a new society-wide structure. Class struggle, on this reading, is transhistorical both because it purports to explain the transition from one historically specific social structure to another, and because it purports to explain multiple such transitions.[18] This account is consistent, I think, with Leiter’s description of the causal role of class struggle in historical materialism. It is also consistent, as I will discuss in Part II of this Reply, with MHMAL.[19] 

An alternative to class struggle would be a process less focused on conflict between large social groups defined by their position in a historically specific production process and more focused on the gradual adjustment of historically specific social relations or institutions to historically specific social and natural pressures. As certain pressures produce certain institutional adjustments, those adjustments begin to have knock-on effects on other relations or institutions that were not, at first, affected by the initial pressures. Eventually, a new social structure emerges from this concatenation of adjustments. Such an explanatory framework, however, would be just as transhistorical as class struggle. For it purports to explain the transition from one historically specific social structure to another, and it purports to explain multiple such transitions. 

To escape the transhistorical regress, I suppose that the anti-transhistorical social theorist could argue that the process which leads from one social structure to another is always and everywhere distinct. There is no transhistorical process to speak of – each social structure generates its own unique mode of disappearance. There are two difficulties with this strategy. First, it does not work for historical cases in which a society features antagonistic sets of social relations or institutions, neither of which is dominant over the other. Earlier, I suggested that sixteenth century England might have been such a society. The truly anti-transhistorical social theorist, however, must deny that any such society could exist. There always must be a dominant set of social relations that explains how all the society’s relations relate to one another, and how the dominant set might someday lose its dominance. The second difficulty is even deeper. The very categories of “structure,” “social relation,” and “institution” are transhistorical in nature. The very claim that “each social structure generates its own unique mode of disappearance” is a transhistorical claim.  Any social theory that seeks to explain historical change will have to include transhistorical elements. The questions that remain are: how plausible are the transhistorical elements; and do they do too much explanatory work in the mine-run of historical cases? 

Reformulated in this way, I take Benkler’s critique of MHMAL to be grounded in the latter’s use of an implausible account of human nature to do too much historical explanation. For reasons discussed in the previous section on naturalism, I don’t find MHMAL’s account of human nature to be implausible. I do agree that such an account risks flattening historical specificity, and has done so in the past. But the transhistorical alternatives are not without their own risks. For instance, social theories that insist on the existence of dominant sets of social relations in every time and place, and task those relations with explaining their own transformation, tend to flatten historical detail as well. They also tend to lose interest in purely natural constraints on social agency. The trick, in all cases, is to remain fallibilistic about the theory and attentive to the detail. Benkler can undoubtedly be trusted to pull off the trick. Nonetheless, for reasons discussed above and in Part II of this Reply, I think there are advantages to grounding social theory – even and perhaps especially radical social theory – in a more naturalistic framework.[20] Within such a framework, transhistorical human propensities – including propensities that drive the structure and outcomes of class struggle – are particularly useful in explaining historical cases that lack an obviously dominant set of social relations. 

As Paul Gowder reminds us, the relevance and adequacy of a social theory is context- and goal-dependent. Both MHMAL and Benkler’s social theory of law – adumbrated over a series of important articles and in a forthcoming book – would, I think, qualify as “big social theories” in Gowder’s sense. Yet Benkler’s approach also possesses certain features of “small social theory,” which Gowder defines as “mak[ing] claims that are about relatively narrow domains of the social world—for example, about specific societies, specific time periods, or smaller social phenomena.” The focus of Benkler’s social theory is “what drives social relations” once the “historically unprecedented dynamics of capitalism” are unleashed. This is no narrow focus! Yet it is, as Benkler says, anchored in a “historically specific dynamic.” The focus of MHMAL is even less delimited. I do think MHMAL provides some useful guardrails when it comes to explaining specific legal developments within mature capitalist societies. But its motivating impulse is to get clear on the more general relationships between law, society, and nature before, during, and – potentially – after capitalism.[21] 

Inspired by Gowder’s call for social theories to be “humble” even if they are “big,” I can imagine a research program that favors Benkler’s approach when there is consensus about the relevant social structure guiding legal development, but favors MHMAL when the precise character – or existence – of a dominant set of social relations is in dispute. It is in the latter circumstances that MHMAL’s transhistorical commitments to naturalism and the explanatory primacy of the productive forces become most salient. Part II of this Reply will spell out in greater detail how those commitments shape MHMAL’s understanding of the place of class struggle and ideology in the explanation of legal development.

Jeremy Kessler is Stanley H. Fuld Professor of Law at Columbia Law School. You can reach him by e-mail at jeremy.k.kessler@gmail.com.