Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Method and History Privacy Beyond Consent: Cofone’s Call for Privacy Torts Autonomy v. Autonomy in the Information Economy Privacy Inserts Taking Power Seriously: The Politics of Privacy Asking the Right Questions: How The Privacy Fallacy Can Guide Health Law Out of the HIPAA Trap Valuing Privacy Harms while Structuring Data Governance Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy "Right in Theory, Wrong in Practice:' Women's Suffrage and the Reconstruction Amendments Divine Madness When (and How) Should Courts Use AI? Simulating AI Constitutional Interpretation Flat out redistribution of wealth at the Federalist Society What Loper Bright Illustrates About the Incoherence of the Court's Statutory Interpretation Theory The Law of Conservation of Judgment How AI Learned to Talk Gun Regulation When the Fourteenth Amendment was Ratified The Procedural Turn’s Faith in Elite Judgment From Stable Foundations to Dynamic Processes (and Back?) Historicizing History? The Turn to Process in Comparative Context Artificial Intelligence and Constitutional Interpretation What Law Schools Can Do, Part I: Teach Persuasion The Unbearable Lightness of Process in the Empire of Substance Balkinization Symposium on Kunal Parker, The Turn to Process Trump’s aspiration isn’t Nazi Germany, it’s feudal Germany The Brits Let Me Down My Interview on Times Radio Shifting Standards for What Constitutes a Dispute Just Security pod on historical threats to democracy and January 6 The crumbly philosophical foundations of Trumpism Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism-- Collected Posts In praise of the Washington Post’s cowardice Law and Historical Materialism: A Reply to Critics – Part II Taking "Offers to Pay for Registering" Seriously (Probably a Mistake) The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It Power for the People: Recognizing the Constitutional Right to Vote for President Law and Historical Materialism: A Reply to Critics – Part I
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Monday, December 09, 2024
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) Sunday, December 08, 2024
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).
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. Saturday, December 07, 2024
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 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. Friday, December 06, 2024
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. Thursday, December 05, 2024
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. Wednesday, December 04, 2024
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
At the conclusion, Ignacio will respond to the commentators. Wednesday, November 27, 2024
"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
Tuesday, November 26, 2024
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.” Monday, November 25, 2024
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.” Sunday, November 24, 2024
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. Friday, November 22, 2024
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. Thursday, November 21, 2024
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.” Wednesday, November 20, 2024
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." Tuesday, November 19, 2024
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, "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. Sunday, November 17, 2024
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. Friday, November 15, 2024
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. Thursday, November 14, 2024
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. Wednesday, November 13, 2024
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 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
At the conclusion, Kunal will respond to the commentators. Tuesday, November 12, 2024
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. Wednesday, November 06, 2024
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. Tuesday, November 05, 2024
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. Friday, November 01, 2024
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 Thursday, October 31, 2024
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. Tuesday, October 29, 2024
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 Monday, October 28, 2024
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. Wednesday, October 23, 2024
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. Tuesday, October 22, 2024
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. Friday, October 18, 2024
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. Sunday, October 13, 2024
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. Friday, October 11, 2024
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 18th 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. [1]
Talha Syed’s bravura contribution raises the deepest objections to this way of
talking. But even Syed’s double-critique of historical materialism and critical
legal studies leaves us with law understood as a system of “social relations”
that are “in no way ‘legally constructed,’ nor simply indeterminately up for
grabs.” Such historically specific social relations possess an “architectural
systematicity” that can only be “targeted” and “transform[ed]” by “social
agency.” The degree of such social agency itself depends on the “lucid[ity]” of
our “social understanding” and the “effectiveness” of our “social practices.”
Even here, law takes a back seat to the social, notwithstanding Syed’s
dissatisfaction with the trope of “internal” versus “external” critique. [2] See
generally Barry Barnes, David Bloor & John Henry, Scientific Knowledge:
A Sociological Analysis (1996). [3]
See, e.g., Harry Collins, Changing Order: Replication and Induction
in Scientific Practice (1985); Donald MacKenzie, Inventing Accuracy: A Historical
Sociology of Nuclear Missile Guidance (1990); Simon Schaffer & Steven
Shapin, Leviathan and the Air-Pump (1985). [4] Here, as elsewhere, Leiter suggests I worry too much about
what various communities of Marxist or leftist scholars think. I suspect that
the difference between historical and philosophical training helps to explain
why I take the persuasiveness of a claim to depend more on what others have
written than Leiter does. [5] See
Lawrence Dallman, Marx’s
Naturalism: A Study in Philosophical Methodology (2021); Lawrence Dallman
& Brian Leiter, Marx and Marxism, in The Routledge Handbook
of Philosophy of Relativism 88 (Martin Kusch ed., 2020). [6] For this reason, among others, Syed’s preferred
account of law rightly abjures both historical materialism and critical legal
studies. [7]
Yochai Benkler, Structure and Legitimation in Capitalism: Law, Power, and
Justice in Market Society 7 & 7 n.30 (Nov. 25, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4614192. [8]
Vanessa Wills, Marx’s Ethical Vision 46 (2024). [9] Id.
at 50. [10] Id.
at 48. [11]
Benkler might mean only that the partial repeal of the Statute of Artificers in
1694 itself changed nothing important. But that is a statement with which Cohen
would have agreed. On his (and Christopher Hill’s) interpretation, the
important social changes occurred in the century prior to repeal. See Christopher
Hill, From Reformation to Industrial Revolution 18-19, 41, 71-76, 139 (1967). [12] See Benkler, supra note 7, at 28. [13] Id.
[14]
For the limited if still identifiable impact of late sixteenth and early
seventeenth century innovations on agricultural productivity growth before
1750, see S.N. Broadberry et al., British Economic Growth, 1270-1870, at
128-129 (2015); and Mark Overton, Agricultural Revolution in England 202-203
(1996). [15] See
Steven Pincus, 1688: The First Modern Revolution 49-90 (2009); William Sewell, Jr., On the
Emergence of Capitalism: Marx, Brenner, and the Troublesome Case of the Dutch,
8 Critical Historical Studies 1 (2024). [16] See,
e.g., Overton, supra note 14, at 193-207; Geoffrey Hodgson, The
Wealth of a Nation 8-14, 77-111 (2023); Neil Davidson, How Revolutionary Were the Bourgeois Revolutions?,
13 Historical Materialism 3 (2005). [17] In a
recent article, Bill Sewell offers both a helpful overview of the strengths and
weaknesses of Brenner’s evolving approach, and a broadly persuasive, if
streamlined account, of the interrelated origins of Dutch and English
capitalism. See Sewell, Jr., supra note 15. [18]
Note that for class struggle to serve as a satisfying explanatory framework for
structural transitions, the framework would have to include further assumptions
about why classes come into conflict and the kinds of factors that determine the
outcomes of such conflicts. [19]
Benkler and Syed reject this explanatory framework – on anti-transhistorical
grounds – in a recent article. See Yochai Benkler & Talha Syed, Reconstructing
Class Analysis, 4 Journal of Law and Political Economy 731, 738-739
(2024). [20] Vanessa
Wills nicely captures the intuition with respect to radical social theory: “We do not exist in a world that is shaped only by capitalists
promoting capitalist ideas, building capitalist institutions, and enforcing
capitalist property relations. We live in a world in which capitalists have an
overwhelmingly significant role in determining human reality; but try as they
might, their rule over humanity is no settled fact. . . . It is th[e] practical
contradiction between capital and labor, its dynamic unfolding under changing
historical circumstances, that increasingly draws the whole of humanity into a
single, central conflict. The sharp, ever more all-encompassing character of
this battle creates, as a material reality, the possibility of observing the
species as a totality in motion, one riven by internal conflicts whose
expression under different circumstances over time
grants us insight into the nature of the species as one whole.” Wills, supra note 8, at 47. [21] Many thinkers within the historical
materialist tradition argue that Marx himself rejected such a transhistorical
aspiration. I disagree, although I don’t think that particular disagreement is
relevant for understanding the differences between Benkler’s approach and
MHMAL. It is relevant for understanding a difference between my
interpretation of Evgeny Pashukanis’s commodity form theory of law and Eva
Nanopoulos’s. Nanopoulos writes that: “Kessler reads Pashukanis as offering an
account of the ‘precise kind of legal relations that
capitalist relations of production require – and generate’. But this is
not exactly what Pashukanis was after. Pashukanis saw law as a form of social
regulation that emerges with and is tied to capitalism as the
generalization of commodity exchange, not as a form of social regulation that
pre-existed but was transformed by capitalism.” Pashukanis is
more ambivalent on this point than Nanopoulos suggests. While it is true that
Pashukanis argues that only under capitalism does the fully “crystallized” legal
form become the dominant mode of social regulation, his historical
curiosity prevented him from claiming that law emerged with capitalism. Evgeny B. Pashukanis, Law and Marxism:
A General Theory 59 (Barbara
Einhorn trans., 1983). That is why his General
Theory includes detailed analyses of Roman and medieval law. Thus: “The municipal statutes were in part general charters, and in part
an enumeration of isolated rights or privileges belonging to particular groups
of citizens. Only when bourgeois relations are fully developed does law become
abstract in character.” Id.
at 120. And: “The earliest and most complete
separation between the public-law principle of territorial sovereignty and
private land ownership occurs in medieval Europe, within the city walls. It is
there that the material and personal obligations pertaining to land
disintegrate earlier than anywhere else into taxes and obligations in favour of
the municipality on the one hand, and into rent based on private property on
the other.” Id. at 137. See also Matthew Dimick, Pashukanis’
Commodity-Form Theory of Law, in Research Handbook on Law and
Marxism 115, 120-121 (Paul O’Connell & Umut Uszu eds., 2021) (noting that,
for Pashukanis, “the ‘juridical factor’ in social life appears wherever private
exchange or private property” – and thus “the differentiation and opposition of
interests” between individuals intrinsic to such exchange and such property –
“exist,” but that “exchange relations under capitalism sharpen and purify this
differentiation and opposition of interests to an unprecedented degree”).
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