Category: Legal Theory


Jeremy Waldron (and F. Scott Fitzgerald?) on the Rule of Law

In this wonderful period of time after the end of classes, and randomly looking at pieces on the Rule of Law far less mystical than my own ruminations, I happened upon Jeremy Waldron‘s reflections (Is the Rule of Law an Essentially Contested Concept (in Florida)? in Law and Philosophy 21:137-164 (2002)). He was inspired by the repeated use of that phrase by both sides in the dispute over the 2000 Florida Presidential vote count. This is a wonderful approach: he takes a small segment of a real world issue, and unpacks it to the core, and in the process, makes a far more universal observation about truth and argumentation. I suppose the only down side of the approach is that it sounds topical, but it’s really not.

Professor Waldron draws on the work of linguistic philosopher W.B. Gallie to treat “the Rule of Law” as an “essentially contested concept.” What this means is that the concept being bandied is, at its core, not susceptible to a single, crisp, resolution, even though participants in the argument seem to be contending that it is. Such a concept, like “the Rule of Law” or “Justice” or “democracy” or “Jewish” (my particular addition to the list) is both normative and complex, such that there is room for contestation within the concept.

Is this another way of seeing F. Scott Fitzgerald’s dictum from The Crack Up (1936), particularly when you look at the entire quote? “The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function. One should, for example, be able to see that things are hopeless yet be determined to make them otherwise.” How can something be true and not true at the same time? As Waldron observes, this is usually the point at which the relativists or radical indeterminists step in to say there are no universals, but he opts instead for the more difficult (and Kantian) view, answering in the affirmative the following questions: “Is it possible to engage in one of these debates [e.g., about whether a particular decision affirms or undermines the Rule of Law] as a partisan of a particular view but also as a theorist who knows why disputes of this kind are intractable? Can one acknowledge that a concept is essentially contested and still claim that one’s own view is right and one’s opponent’s view wrong?”

The fundamental paradox of the Rule of Law is that a system of laws overcomes the rule of men. The Rule of Law is supposed “to supersede the role of human discretion;” nevertheless, without people, “how can we make the law rule?” I admire (and share) Professor Waldron’s optimism, even about something as intractable as the Florida dispute:

My point at this stage is just to emphasize. . .that disputation can make things better whether or not the participants are in position to associate that process with anything like the idea of essential contestability. Perhaps it is best to say, then, that we should call an idea essentially contested when we find that contestation about its definition helps deepen and enrich our sense of what is at stake in a given area. We should not suppose that this deepening and enriching effect depends upon a prior characterization of the concept as essentially contested or that it depends upon the parties accepting such a characterization. Their arguments play a part in the process whether they do so self-consciously or not.

In other words, unlike the participants who are citing the Rule of Law instrumentally, we third-party observers see something that we can call the Rule of Law even in the bizarre twists and turns of what became Bush v. Gore.


Corporate Governance, the Rule of Law, and Glimpses of the Infinite

Non-sequitur alert. Try to figure what the next two segments have to do with each other. I will get back to you about it below the fold.

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The other day I posted what at the time I thought was a grumpy comment to a post by Jennifer O’Hare of Villanova over at Conglomerate. The gist of her post was whether the failure of a corporation to have a “succession plan” for the CEO position could be laid at the doorstep of the board of directors in the form of liability for breach of fiduciary duty – I suppose either the duty of care or the duty of loyalty in the sense of the more recent Delaware decisions. The genesis for Professor O’Hare’s post was a report in the Wall Street Journal that only 50% of public and private corporations had “succession plans.” I remind my students from time to time that I’m an ex-corporate shill, and to take any view I profess with that in mind, so readers here are advised similarly.

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I seem to have gotten fixated over the last few weeks on the words “Justice” and “Rule of Law.” This all started back in July at the Law & Society Association annual meeting in Berlin, first at an “Author Meets Readers” session about Brian Tamanaha‘s Law as a Means to an End, and later at a roundtable on which I was honored to participate about the New Formalism. Larry Solum organized both sessions, so it’s appropriate to hearken back to my paraphrase at the time of his words capsuling the issue: “We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism.” Or to put it in the context of the sociology of Niklas Luhmann (about which there was a concurrent series of sessions going on): it’s only within the legal system that the participants operate under the delusion there is Justice or Rule of Law. From the outside looking in, the paradox is obvious: we want to believe there is either a transcendent or immanent, but more importantly, objective right answer, even while we argue from subjective and instrumental positions. The only way the legal system works is with a kind of doublethink; believing in this dialectic that objective truth can somehow arise out of the clash of instrumental interests (to which, of course, Brian Tamanaha objected).

We are, like everyone else, in the faculty appointment job talk part of the year, and I have now heard the idea of Justice and Rule of Law discussed several times in different contexts. One set of job talks had to do with the idea of juvenile justice. Juvenile lawyers (and in our case, juvenile legal clinicians) have to deal with two competing concerns, the best interest of the child, and the obligation of zealous representation in delinquency trials. To put it more plainly, confession may be good for the soul, for healthy development, and for the making of good citizens, but it’s bad for the juvenile defendant and his lawyer.

The idea surfaced again in a job talk about school desegregation, and the fact that Brown v. Board of Education (Brown I) was cited in support of three different positions in the recent Supreme Court case on school desegregation (i.e. colorblindness, integrationist, and a hybrid view). The candidate had an interesting thesis: that Brown has a colloquial or popular meaning apart from its technical legal holding. I like that idea, but it seems to me all it is saying is that Brown has become a shorthand reference for “Justice” or the “Rule of Law” in the context of racial equality. So it’s no more surprising that everybody cites Brown than than everyone insists, in an instrumental way, that its view is the one consistent with justice or the Rule of Law.

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Well, I have some street cred on the subject of corporate governance, and almost none on juvenile justice or school desegregation, but I am still fixated on these paradoxes in the ideas of Justice and the Rule of Law. So below the fold, I’m going to ramble a bit about corporate governance, the paradoxes of the Rule of Law, and glimpses of the Infinite.

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Models and Games

This seems like an auspicious occasion to announce that, following in the Larry Solum model of developing a paper from blog post to short idea piece to full-blown article, I’ve posted on SSRN the complete version of what was known in a prior iteration as “Aboutness, Thingness. . . .” The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these particular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.

The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn’t tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn’t make sense in the same way this answer does: “because I wanted his wallet full of money.”

The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.

The article is Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists. The abstract follows the fold.

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Solum on Originalism

Over at Legal Theory Blog, Professor Larry Solum (Illinois) has a terrific post discussing a recent flurry of scholarly interest in originalist theories of constitutional interpretation. In his discussion, he has links to a number of important articles and blog posts on originalism: Brest, Powell, Scalia, Whittington, Balkin, Barnett, and Leiter. As Larry often says on his own blog: Highly recommended!


Privacy’s Other Path: Recovering the Law of Confidentiality


Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.


Should Courts Issue Unpublished Opinions?

lawbooks1b.jpgNOTICE: This is an unpublished blog post. It may not be cited by any court or any party to any litigation.

A common practice for many courts is to issue unpublished opinions that may not be cited as precedent. These opinions are often short and consist of a few paragraphs. They are generally supposed to be limited to cases that can be resolved by clearly-established legal rules. According to one news article: “California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions.” These statistics are staggering. Are there really so many cases that do not warrant having precedential value?

Unpublished opinions that may not be used for precedent raise some serious questions. Our legal system relies upon precedent, and we bristle when judges depart from precedent. Yet should we allow judges to say that some opinions are not precedent-worthy? Now that these cases are all readily available electronically, the argument that it is impossible to publish all opinions does not seem persuasive. Another argument is that it would overburden the courts if they couldn’t write unpublished opinions, which are typically very short and hastily-written. If these opinions counted, the argument goes, then judges might feel compelled to spend more time researching and writing them. But wouldn’t this be a good thing? Maybe it would yield better opinions. So by issuing an unpublished opinion, the court is basically saying: “Here’s our decision. We don’t think it’s good enough to be considered as precedent, yet your case isn’t worthy of our spending a lot of time to write such an opinion.”

But what about judicial workload? That surely is a problem, but it still strikes me as fundamentally wrong for a court to issue a decision that it believes is not adequately researched or articulated. Perhaps courts don’t believe this, but if an opinion is adequately researched and articulated, why not publish it and give it precedential value? And if the problem is excessive workload, then shouldn’t there be another way to address it?

Fortunately, in federal courts the rules are changing. In 2006, the U.S. Supreme Court voted to allow the citation of unpublished opinions.

But the practice still remains alive and well in state courts.

When I was clerking in federal circuit court before the rule change, I was surprised at the number of unpublished opinions (called “memorandum dispositions” or “mem dispos” for short). In one case, I found a memorandum disposition that addressed and resolved an open question in the circuit — yet because it was just a memorandum disposition, I couldn’t cite to it or rely upon it. So the issue had been confronted in the circuit and resolved by a panel, but that panel struck me as being lazy and didn’t want to bother to write a real opinion and resolve the issue in the circuit.

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Michael Sullivan’s Legal Pragmatism: Community, RIghts, and Democracy

book-sullivan-pragmatism.JPGIt seems as though books are the theme of my blogging this week, so I thought I’d recommend another great new book: Professor Michael Sullivan’s Legal Pragmatism: Community, Rights, and Democracy (Indiana Univ. Press 2007). From the book jacket:

In Legal Pragmatism, Michael Sullivan looks closely at the place of the individual and community in democratic society. After mapping out a brief history of American legal thinking regarding rights, from communitarianism to liberalism, Sullivan gives a rich and nuanced account of how pragmatism worked to resolve conflicts of self-interest and community well-being. Sullivan’s view of pragmatism provides a comprehensive framework for understanding democracy, as well as issues such as health care, education, gay marriage, and illegal immigration that will determine its character in the future. Legal Pragmatism is a bold, carefully argued book that presents a unique understanding of contemporary society, law, and politics.

Michael Sullivan is a professor of philosophy at Emory University and was a classmate of mine at Yale Law School. A few years ago, we co-authored an article about legal pragmatism: Can Pragmatism Be Radical?: Richard Posner and Legal Pragmatism, 113 Yale L.J. 687 (2003). Michael is one of the most brilliant people I’ve met, and his new book is terrific. Professor Bruce Ackerman’s blurb says it all: “[This book] represents a genuine breakthrough. . . . [It] will have a large influence on the course of jurisprudential reflection in the decades ahead.” Highly recommended for anybody interested in legal theory!


Law Talk: Markovits on Contracts of Adhesion

In this week’s episode I speak with Professor Daniel Markovits of the Yale Law School. Daniel writes in a variety of areas including the philosophy of law, the theory of toleration, and — most importantly — the theory of contract law. In 2004, Daniel published an ambitious article in the Yale Law Journal“Contract and Collaboration” — in which he sought to offer a new theory of contractual liability based on the integrative and pro-social effects of contracts. He is now at work on a project that applies his collaborative theory of contract to the perennial problem of contracts of adhesion. The result, as you can hear in this episode, is a critique of contracts of adhesion that is unrelated to the traditional complaints of unequal bargaining power and substantive unfairness.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Cell Phone Gag Rule

gag.jpgThere is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

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Law Talk: Steven D. Smith and Law’s Quandary

smithsd.jpgI am happy to announce the inaugural episode of “Law Talk: The Legal Scholarship Podcast.” My guest for this episode is Steven D. Smith, the Warren Distinguished Professor of Law at the University of San Diego and the Co-Director of San Diego’s Institute for Law and Philosophy. In this episode, we discuss Steve’s book Law’s Quandary as well as his recently published lecture, “The (Always) Immanent Death of Law.” Along the way, Steve has some fascinating things to say about law, the state of legal philosophy, and what jurisprudence might (or might not) have to say to the “real” practice of law.

You can subscribe to “Law Talk” using iTunes or Feedburner. “Law Talk” is very much a work in progress, and I welcome any feedback or suggestions. You can email me at nboman-at-wm-dot-edu.