Category: Law and Humanities


Constitutional Protestantism or Constitutional Televangelism

I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.

I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive.  The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea.  It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational.  One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all).  It is also possible to read it without understanding it very well.  Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).

Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way!  Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations).  Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing.  Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.

So does all this mean the Protestant idea has no practical effect?  Quite the contrary.  The Protestant idea has an extremely important effect.  The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court.  We get to decide for ourselves who to trust, whose interpretive authority to respect.  This is, as Jack says, a great theology for dissent.  We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.

This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change.  But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning. Read More


What kind of constitution is the subject of this book?

First, thanks to Danielle and Jack for the opportunity to participate in this symposium.  I’m happy to do it because I think this is a fantastic book.

Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change.  I thought I’d start there, because that piece is at the foundation of the argument of the book.  Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere.  Indeed you see these moves even in debates that are not, explicitly, constitutional debates.

And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith and redemption in something like the broad political/constitutional project of the United States?  It is hard to separate these things.  But let’s look at places where the two might plausibly come apart.  Jack (citing Mark Graber) notes that in recent years, among liberals, the canonical example of a policy problem the constitution does not address is the distribution of income and wealth (132-33).  So let’s begin with the stories we tell about fiscal policy.

Last April, President Obama made a speech on the deficit and fiscal policy in which he offered a defense of Medicare, Medicaid, and unemployment insurance, along with Social Security.  He said: “From our first days as a nation, we have put our faith in free markets and free enterprise as the engine of America’s wealth and prosperity.  More than citizens of any other country, we are rugged individualists, a self-reliant people with a healthy skepticism of too much government.  But there’s always been another thread running through our history -– a belief that we’re all connected, and that there are some things we can only do together, as a nation.”  After discussing such collective projects as schools, science, the military, and the interstate highway system, Obama argued that Medicare, Medicaid, unemployment insurance, and Social Security were part of this “American belief that we are all connected,” which is in part a “conviction that each one of us deserves some basic measure of security and dignity.”  He argued, “We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.”

Rick Santorum sharply criticized these comments in a speech in June.  Santorum quoted the lines above and responded, “Ladies and gentlemen, America was a great country before 1965!”  When the applause died down, he continued: “Social conservatives understand that America is a great country because it was founded great.  Our founders, calling upon, in the Declaration of Independence, the Supreme Judge, calling upon Divine Providence, said what was at the heart of American exceptionalism.  In the Declaration of Independence it said ‘We hold these truths to be self-evident, that all men are created equal and endowed by our Creator with certain inalienable rights.’  You see, our founders understood that we were going to take the principles, Judeo-Christian principles, that had been out there for centuries, and we were going do something radical.  We were actually going to found a government upon these principles.”

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Constitutional Redemption: Narratives, Historical and Fictional

It’s an honor to be here, commenting on Jack’s hugely impressive and erudite work of constitutional scholarship. If you haven’t read it yet, the most useful thing I can say to you is to stop reading what I have to say and go read what he does. I especially admire his discussion of the role of narrative in constitutional argument, and it is that part of the book that I’d like to focus on. I should say at the outset that I don’t have any criticisms—and I may not even have any comments!—to make. Really, what I have are some questions. (And I don’t mean that in the standard, law professor-y “I’m going to make my comments and then add a question mark at the end” sense. I really don’t have answers for these questions.)

Jack lays out his own narrative of constitutional development at pages 18-23. It is a powerful narrative, one that describes American constitutional development as a slow and always-incomplete attempt to redeem the promise of the Declaration of Independence, which Jack understands as embodying an attack on “the social structure of monarchy” (p. 23), or, even more ambitiously, a “demand for social equality” (p. 22). There is a great deal to find appealing in this narrative, and its brevity should not lead us to underestimate its potency (as, I think, Adrian Vermeule did in his review of the book).

Others may wish to comment on the lessons Jack draws from this narrative, or even on its historical accuracy. But that’s not my interest here. Instead, I’m interested in why the narrative’s claim to historical accuracy is important in the first place.

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At the Brainwash

In Exit Through the Gift Shop (2010), the anonymous British artist Banksy documented the transformation of Thierry Guetta from a used clothing salesman and amateur videographer into the art star “Mr. Brainwash.”  The film is a droll sendup of the art world, culminating in Guetta’s wildly successful monster art show, which consists exclusively of asinine Banksy knockoffs.  Among other things, Guetta’s artwork prominently features reproductions of an iconic photograph of 80s rappers Run-D.M.C.  For example, “Old Photo” (pictured) combined the Run-D.M.C. photograph with an anonymous 19th century photograph.

But the joke was on Guetta.  Glen E. Friedman, the author of the Run-D.M.C. photograph, sued Guetta for copyright infringement in the Central District of California (Friedman v. Guetta, Case No. CV 10-00014 DDP).  Guetta responded that the Run-D.M.C. photograph lacked originality and claimed fair use, but on May 27, 2011, Judge Pregerson granted Friedman’s motion for summary judgment.  Unsurprisingly, Pregerson held that the original photograph was sufficiently original.  But Pregerson also rejected Guetta’s fair use defense, finding that Guetta’s use of the photograph wasn’t transformative because he and Friedman both used it in a work of visual art, and that Guetta infringed on the market for the photograph because Friedman licenses it commercially.
On the law, Pregerson’s decision is surely correct.  At least it tracks the outcome of the recent Cariou v. Prince case and the older Rogers v. Koons case in finding appropriation art insufficiently transformative for fair use.  But why?  In each case, the infringing work looks different from the original work, so it is “transformative,” at least in the literal sense.  Of course, appropriation deprives original authors of license fees, but the ultimate question is whether they are entitled to such fees in the first place.
Interestingly, courts and commentators often focus on the right of original authors to control their work.  As Pregerson put it, “Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work.”  But why does justice require that authors control and benefit from uses of their work, other than copying?  Indeed, is justice even the relevant standard?
Of course, Guetta is an astonishingly bad artist.  As Banksy muses in Exit Through the Gift Shop, “Andy Warhol was replicating images to show they were meaningless.  And now, thanks to Mr. Brainwash, they’re definitely meaningless.”  But doesn’t fair use protect meaningless art, too?

Thoughts on an Earthquake: Narratives and Governance

[Attorney and journalist Andrew J. Sutter is the only foreign member of the Iwate Prefecture Bar Association. He lives most of the year in central Tokyo. We’ve invited him to give his perspective on recent events in Japan. –FP]

There’s been a joke making the rounds of Tokyo during the past week or so: The government announces in the morning that there could be a sudden blackout sometime by early evening, since power capacity is down and the demand is already very near to capacity. In America, the blackout happens, and stores get looted. In China, the blackout happens and no one notices, since they’re already a common occurrence. In France the blackout happens, and people start to make love. In Germany the blackout happens, and no one cares, because everyone has solar power. In Japan, millions of Japanese conscientiously reduce power consumption, so the blackout is avoided – and then people are pissed off because the blackout didn’t happen as announced.

Aside from showing the gentleness of the Japanese sense of satire, it’s a true story, based on events in Tokyo exactly one week after the Touhoku (northeastern Japan) earthquake. The joke arrived on my wife’s cell phone about an hour or two after officials rescinded the warning.

The joke also shows a certain trust in the government and in the reliability of its pronouncements. More about this below the fold.
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Key Performance Indicators: Power as Knowledge

There is an excellent review essay by Simon Head on the future of British universities in the NYRB. It discusses the Strategic Plan of the Higher Education Funding Council for England (HEFCE), including the “Research Assessment Exercise (RAE) led every six or seven years.” As of 2008, panels of 10 to 20 specialists in 67 fields evaluate work during RAEs. As the author explains,

The panels must award each submitted work one of four grades, ranging from 4*, the top grade, for work whose “quality is world leading in terms of originality, significance and rigor,” to the humble 1*, “recognized nationally in terms of originality, significance, and rigour.” The anthropologist John Davis . . . has written of exercises such as the RAE that their “rituals are shallow because they do not penetrate to the core.”

I have yet to meet anyone who seriously believes that the RAE panels—underpaid, under pressure of time, and needing to sift through thousands of scholarly works—can possibly do justice to the tiny minority of work that really is “world leading in terms of originality, significance and rigour.” But to expect the panels to do this is to miss the point of the RAE. Its roots are in the corporate, not the academic, world. It is really a “quality control” exercise imposed on academics by politicians; and the RAE grades are simply the raw material for Key Performance Indicators [KPIs], which politicians and bureaucrats can then manipulate in order to show that academics are (or are not) providing value for taxpayers’ money.

Imagine “needing to sift through thousands of scholarly works” in short order; what a bizarre process. There are many critics of RAE; this essay is particularly worth reading because it connects the dots between corporate-speak and the new academic order:
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UCLA Law Review Vol. 58, Issue 3 (February 2011)

Volume 58, Issue 3 (February 2011)


Good Faith and Law Evasion Samuel W. Buell 611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 Katherine Florey 667
The Need for a Research Culture in the Forensic Sciences Jennifer L. Mnookin et al. 725
Commentary on The Need for a Research Culture in the Forensic Sciences Joseph P. Bono 781
Commentary on The Need for a Research Culture in the Forensic Sciences Judge Nancy Gertner 789
Commentary on The Need for a Research Culture in the Forensic Sciences Pierre Margot 795


What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation Samuel M. Kidder 803
Defendant Class Actions and Patent Infringement Litigation Matthew K. K. Sumida 843


A2K, Practice, Nonknowledge

Congratulations to all involved on the publication of the A2K volume!  I think A2K is a provocative way of framing some contemporary debates around knowledge, information, community, property, intellectual or otherwise.  It feels like every week brings us some new shift which is being linked to A2K issues: Tunisia; Egypt; WikiLeaks to name just a few.  In many of these situations, what’s at stake is the way that knowledge is legally characterized as property: state property; private property etc.  And the ways in which our ability to reproduce and disseminate knowledge radically shifts our understanding of what an object or subject of knowledge is, bringing into being new publics and new kinds of archive.

For me, the point made at the end of Amy’s introduction, about the need to separate “knowledge” from “information” is a key one, in that if all knowledge is rendered as information and more specifically information stored and passed around in digital data networks, then knowledge has already been reified or turned into a commodity.  Perhaps I might even wonder if there was a more fundamental kind of access than “access to knowledge” that was at stake in contemporary struggles about intellectual property.  For example if communities and individuals are constituted by practices of copying, things like pleasure, affect, relation are all there, even “being”. It’s always possible to instrumentalize those things are forms of knowledge or “ethical know how” as Buddhist neurologist Francisco Varela termed it.  But it may be the case that something important gets lost if one overemphasizes knowledge at the expense of other forms of being in the world.

In my own work, I’ve emphasized the importance of practice as being important in itself, regardless of the “content”.  How do we defend particular practices of copying that may or may not be centered on knowledge production but which nonetheless are culturally significant? There’s an important body of work in critical theory, from Bataille and Blanchot through Agamben and Nancy on the importance of “nonknowledge” and “unworking” (désoeuvrement). These concepts can seem very abstract and removed from the concrete struggles of social activists, but I wonder to what degree they might be helpful in thinking and making spaces where openness and sharing prevail, spaces that can’t necessarily be defined in advance as public domain or commons  etc.


Book Review: Hirschl’s Constitutional Theocracy

Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00

Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.”  This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state.  How does one reconcile divine and man-made law?

In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.

The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.

In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.

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College Preparedness, Law, and the Structure of Standards

The Pathway of Preparedness

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020.  In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production.  The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism.  Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures.   Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college.   However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

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