Through a Lawyer’s Eyes: Data Visualization and Legal Epistemology (Mar. 8, 2018) by Vincenzo Zeno-Zencovich “aims at investigating the relationship between the law and its visual depiction, in the light of the growing use of vast amounts of data to represent social phenomena. Visual analytics and infographics are part of contemporary forms of representation and knowledge. To what extent can lawyers do – or should do – without them and what profit, instead, might they take from them?”
From the abstract for William Baude’s Constitution Liquidation, 71 Stanford Law Review (2019), Forthcoming:
James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This paper attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.
Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution, but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction” – a real or imputed popular ratification.
While this paper does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.
Interesting. — Joe
From the conclusion of Guy Sagi’s A Comprehensive Economic and Legal Analysis of Tying Arrangements, 38 Seattle University Law Review 1 (2014):
There is currently a gap between the economic theory and the prevailing law regarding tying arrangements. These arrangements, which used to be considered essentially harmful, have been shown to possess limited potential for harm—certainly less significant potential than was previously thought. Moreover, tying arrangements have been shown to hold the potential for great and essential benefit. This Article has presented the main accepted modern economic insights, and has proposed the appropriate legal rules for analyzing the various tying scenarios. When the tying arrangement does not lead to a significant closing of the tied product market, and so it does not affect this market’s competitive structure, the legal per se rule should be applied. In contrast, when the tying arrangement leads to a significant closing of the tied product market, the rule of reason test should be applied, but not in the format that assumes that tying arrangements in these scenarios are harmful. Rather, it should be applied in a format that requires the plaintiff to prove the existence of real potential to harm competition significantly. If the existence of harmful potential is proven, the defendant will have to prove a significant efficiency justification. Then, the onus returns to the plaintiff to show that the anticompetitive potential of the tying outweighs its procompetitive potential.
Here’s the abstract for Randy Gordon’s Making Meaning: Towards a Narrative Theory of Statutory Interpretation and Judicial Justification, 2 Ohio State Bus. L.J. _____ (2017):
The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal—at least in part—how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO’s purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge narrates legislative history. I conclude by remarking that a narrative theory of interpretation and justification may have universal relevance.
Tara Grove has published The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465 (2018). Here’s the abstract:
The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds” and thus built what the Article calls “conventions of judicial independence.” But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other long-standing norms, federal judges should take none of their current protections for granted.
H/T to Civil Procedure & Federal Courts Blog. — Joe
Drawing upon new citation data and archival research, Nicholas R. Parrillo’s Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale Law Journal ___ (2013) “reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user — a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.” Interesting. — Joe
From the abstract for Gregory E. Maggs’ A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning, 49 Conn. L. Rev. 1069 (2017):
Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary sources containing the legislative history are widely available online, some of them lack useful indexes and are only partially electronically searchable. In addition, statements made during the drafting and debate over the Fourteenth Amendment do not always yield clear answers to modern questions. Aggravating the situation, most lawyers, judges, law clerks, and legal scholars receive little or no instruction on how to use the documents containing the legislative history of the Fourteenth Amendment. Accordingly, they may feel unequipped either to use the legislative history to make claims about the Amendment’s original meaning or to evaluate the claims of others. Even the Supreme Court appears to have difficulty with the details. This Article seeks to improve the situation by providing a critical guide to the Amendment’s legislative history.
From the abstract for Kyle K. Courtney’s Fair Use is a Right, Haters to the Left: A Primer for Libraries and Other Cultural Institutions (Mar. 29, 2018):
‘[I]n the 30 years of fair use’s modern statutory existence, a terrible myth has crept its way into the doctrine: fair use is an “affirmative defense.” This myth has created more controversy and misunderstanding of our most critical of all copyright exceptions. But, in the end, it is just a myth, and citizens, journalists, teachers, librarians, authors, students, artists, and others should work to dispel this myth. Fair use is a right.
This article outlines the history of fair use and the development of the “affirmative defense” myth. Part I discusses the origins and history of fair use and its development from English law. Part II reveals the treatises and other secondary sources that began to muddy the fair use doctrine. And Part III reveals how the myth was adapted into the common law by a few courts. Finally, in Part IV, the author offers three areas to examine and help reverse the affirmative defense myth: the accurate legislative history of fair use , the plain meaning textualism of the statute, and modern fair use case interpretation. Each of these studies will reveal that fair use is, and was always meant to be, a fundamental right.
From the abstract of Joshua Miller’s The Rendition of Fugitive Slaves and the Development of the Law and Order President, 1790-1855 (2017):
Presidents Nixon and Trump ran on law and order platforms — and Presidents Reagan and Clinton had tough on crime agendas, however, many do not know how presidents became responsible for maintaining law and order. It started in 1787 with a vaguely defined fugitive slave provision in the Constitution but resulted in Presidents Washington, Madison, Monroe, Fillmore, Pierce and Buchanan using the military, State Department, and the Attorney General to recover fugitive slaves. This paper then will explain how presidents developed their law and order responsibilities by properly conceptualizing law and order based on how it developed in the colonial era and introducing race as a variable to the development of the presidency. In the colonial era, law and order meant using the criminal justice system to prevent slaves and indentured servants from plotting insurrections and running away. The colonists legitimized this unfair criminal justice system with a white supremacist ideology, which claimed that African’s naturally inferior condition disqualified them from an equal criminal justice process. This dynamic meant that racial ideology and law and order developed symbiotically during the colonial era, was institutionalized in the fugitive slave clause of the Constitution, and then formed the basis for the development of the law and order president starting in the 1790s.
From the abstract of John Mikhail’s The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523-1806:
In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”
Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792.
Here’s the abstract for Laurel Rigertas’ The Birth of the Unauthorized Practice of Law Movement (2018):
Drawing on original historical research, this article provides the most comprehensive view to date of the birth of the modern movement to prohibit the unauthorized practice of law. Focusing on the work of bar associations in Illinois and New York in the late 1800s and early 1900s, this article chronicles how newly formed bar associations began to curb the unauthorized practice of law. Their efforts eventually led to a well-established state constitutional law principle that state courts, not state legislatures, have the power to define the practice of law and who can practice law. This power currently has a significant impact on exploring alternative ways to increase access to justice. Unlike other areas, such as health care, state legislatures cannot create new categories of licensed professionals to provide legal services in order to increase access to legal services.
At the time that bar associations began to address the unauthorized practice of law, this exclusive power of state courts was not well-established. In fact, as the research in this article demonstrates, early bar associations initially saw state legislatures as appropriate partners to define the practice of law and help them curb the unauthorized practice of law. The exclusion of legislatures came later. Examining this history raises the question of whether the exclusion of legislatures is mandated by separation of powers, or whether they were excluded because, pragmatically, courts were a better partner for promoting lawyers’ self-interests. If the latter, then the current power of the state courts can and may become an artifact of history.
Ethan J. Leib and Jed Handelsman Shugerman’s Fiduciary Constitutionalism and ‘Faithful Execution’: Two Legal Conclusions, Georgetown Journal of Law & Public Policy, Forthcoming, “explores the Constitution’s requirement that the President “take Care that the Laws be faithfully executed” and the requirement that he take an oath to “faithfully execute the Office of President of the United States.” The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign’s exercise of its political power must be constrained by fiduciary standards – like the duties of loyalty and care – is not new. But we are collecting more and more evidence that the framers of the U.S. Constitution rather self-consciously sought to design a “the fiduciary law of public power” in which the government’s “conduct would mimic that of the private-law fiduciary.” Here we show how the distinctive fiduciary language that appears in Article II reinforces a strain of work in fiduciary constitutionalism by Robert Natelson, Gary Lawson, and Guy Seidman.
“After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what the fact of the fiduciary constitution may mean for modern issues in constitutional law. First, we argue that fiduciary constraint has implications for the legal validity of presidential pardons that are not efforts to pursue the public interest. Because the core duty of all fiduciaries is to be loyal to beneficiaries and not to pursue their own self-interest, pardons in derogation of a president’s fiduciary obligation are invalid. Second, we suggest that when properly conceived as a trust instrument, we can both appreciate where the non-delegation doctrine came from and why it is consistent with the original meaning of the Constitution to have a much relaxed rule about delegation today. By way of conclusion, we meditate on how to convert legal conclusions that flow from the fact of our fiduciary constitution into remedies that make sense for the potentially sui generis fiduciary law that is constitutional law.”
Here’s the abstract for Jeffrey J. Rachlinski’s The Politics of Legal Empirics: Do Political Attitudes Predict the Results of Empirical Legal Scholarship? (2018): “Empirical legal scholarship has emerged as a dominant trend in legal scholarship. At its best, empirical scholarship subjects assertions about the effect of legal rules to a neutral test. But is empirical inquiry truly neutral? The validity of an empirical study should rest on the reliability of the methods used, rather than the political implications of its conclusions. Scholars might choose targets of inquiry, sources of data, or methods of analysis that support their political allegiances. This paper tests this thesis by matching the political beliefs of authors of empirical legal scholarship with the results of their research. The political allegiances of authors mildly correlate with the results of empirical inquiry in legal scholarship.” — Joe
In Do altmetrics correlate with the quality of papers? A large-scale empirical study based on F1000Prime data, Lutz Bornmann and Robin Haunschild “address the question whether (and to what extent, respectively) altmetrics are related to the scientific quality of papers (as measured by peer assessments). Only a few studies have previously investigated the relationship between altmetrics and assessments by peers. In the first step, we analyse the underlying dimensions of measurement for traditional metrics (citation counts) and altmetrics–by using principal component analysis (PCA) and factor analysis (FA). In the second step, we test the relationship between the dimensions and quality of papers (as measured by the post-publication peer-review system of F1000Prime assessments)–using regression analysis. The results of the PCA and FA show that altmetrics operate along different dimensions, whereas Mendeley counts are related to citation counts, and tweets form a separate dimension. The results of the regression analysis indicate that citation-based metrics and readership counts are significantly more related to quality, than tweets. This result on the one hand questions the use of Twitter counts for research evaluation purposes and on the other hand indicates potential use of Mendeley reader counts.”
H/T to Gary Price’s InfoDocket post. — Joe
Here’s the abstract for Baylen J. Linnekin’s ‘Tavern Talk’ & the Origins of the Assembly Clause: Tracing the First Amendment’s Assembly Clause Back to Its Roots in Colonial Taverns (2011):
The First Amendment to the Constitution is “a cluster of distinct but related rights.” The freedom of assembly protected therein is one right that Americans exercise every day. With perhaps the exception of speech, assembly is the most widely and commonly practiced action that is enumerated in the Bill of Rights.
This freedom is also one of our least understood and least considered rights. Sometimes ignored and other times grouped with other freedoms, the right of those in America to come together peaceably deserves to be studied, respected, and celebrated.
To better understand the freedom of assembly in America, one must explore and understand its origins. Tracing the evolution of the freedom of assembly requires placing this freedom “within the context of culture.” Exploring the origins of the freedom of assembly in the context of culture requires tracing the right – as practiced – back to its fundamental situs, a term that can be used to ground rights in their proper place or places.
The proper situs of the Assembly Clause, research reveals, is in its birthplace: colonial America’s taverns. Colonial taverns served not just as establishments for drinking alcohol but as vital centers where colonists of reputations great and small gathered to read printed tracts, speak with one another on important issues of the day, debate the news, organize boycotts, draft treatises and demands, plot the expulsion of their British overlords, and establish a new nation.
In Part II I trace the early history of taverns in colonial America. In Part III I discuss the role that colonists assembling in taverns played both in fostering the freedom of assembly and in combating growing British attacks on the rights of American colonists. In Part IV I analyze the brief but informative legislative history of the Assembly Clause. In Part V I describe how tavern talk places the situs of the freedom of assembly squarely in taverns. In Part VI I conclude that in taverns and tavern talk are the origins of the Assembly Clause.
Interesting. — Joe
In his essay, An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States, 14 University of St. Thomas Law Journal 193 (2018), Lee J. Strang reviews “a modest selection of important evidence from the early Republic, the debate over the constitutionality of the First Bank of the United States in the First Congress, to evaluate whether, to what extent, and how Americans utilized constitutional construction in the early Republic. This Essay derives a number of tentative conclusions from this evidence. First, the participants in this early debate appeared to believe that a necessary precondition for constitutional construction — underdeterminacy — existed. Second, the participants also argued as if, after the application of a number of interpretative rules, the Constitution provided a determinate answer to the constitutional question. Third, the participants seemed ultimately to conclude that the Constitution’s meaning provided a determinate answer to the question under debate (though they continued to disagree about what that answer was).”
Law and Social Movements: Reimagining the Progressive Canon, Wisconsin Law Review (Forthcoming 2018) by Scott L. Cummings “examines the ‘progressive legal canon’ — iconic legal campaigns to advance progressive causes — and explores the implications of canon construction and critique for the study of lawyers and social movements. Looking backward, it reflects on why specific cases, like Brown v. Board of Education and Roe v. Wade, have become fundamental to progressive understandings of the role that lawyers play in social movements and how those cases have come to stand for a set of warnings about lawyer and court overreach. It then explores what might be gained from constructing a contemporary progressive legal canon and under what criteria one would select cases for inclusion. A core contribution of the Article is to synthesize examples of significant contemporary campaigns that respond to original canon concerns and complicate notions of lawyering in current movements of social import around labor, the War on Terror, LGBT rights, immigrant rights, and racial justice. The comparison of old canon to new yields an important insight. Although the form of legal mobilization is generally quite different in contemporary campaigns, with greater emphasis on constituent accountability and integrated advocacy, the outcome is often quite familiar: legal success and positive change alongside weak implementation, countermobilization, and intramovement dissent. Although the comparison is not systematic, it points toward a potentially significant conclusion: that the progressive critique of old canon lawyering is misplaced. What stymied old canon campaigns was not an overreliance on law or top-down planning, but rather the inevitable pushback by more powerful forces, causing gains to slide back or be undercut in the enforcement stage and aggravating internal movement debates over goals and strategies.”
H/T to Legal History Blog. — Joe
Here’s the abstract for Joseph Fishkin & David Pozen, Asymmetric Constitutional Hardball, 118 Columbia Law Review 915 (2018):
Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they have not done so with the same frequency or intensity.
After defining constitutional hardball and defending this descriptive claim, this Essay offers several overlapping explanations. Asymmetric constitutional hardball grows out of historically conditioned differences between the parties’ electoral coalitions, mediating institutions, views of government, and views of the Constitution itself. The “restorationist” constitutional narratives and interpretive theories promoted by Republican politicians and lawyers, the Essay suggests, serve to legitimate the party’s use of constitutional hardball.
Finally, and more tentatively, this Essay looks to the future. In reaction to President Trump, congressional Democrats have begun to play constitutional hardball more aggressively. Will they close the gap? Absent a fundamental political realignment, we submit that there are good structural and ideological reasons to expect the two parties to revert to the asymmetric pattern of the past twenty-five years. If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.
Here’s the abstract for Nicole Schwartzberg’s What Is A ‘Recess’? : Recess Appointments and the Framers’ Understanding of Advice and Consent, 28 Journal of Law and Politics 231 (2013):
Article II, Section 2, Clause 3 of the U.S. Constitution (commonly referred to as the “Recess Appointments Clause”) confers upon the President the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” President Obama’s January 2012 recess appointments, made while the Senate attempted to block the President from making any recess appointments over the holiday break by holding “pro forma” sessions, raised new questions about the scope of the President’s power to avoid Senate confirmation. Can the Senate successfully prevent the President from making a recess appointment by convening every three days for sessions, even when no business is actually conducted?
Although a growing literature has sought to address this question, surprisingly little attention has been paid to the Framers’ intent when they incorporated the Recess Appointments Clause into our Constitution, in part due to the absence of legislative history accompanying the provision. This Article argues that while there is little direct evidence of the Framers’ intent concerning the Recess Appointments Clause, attending to adjacent provisions of the Constitution that require the Senate’s advice and consent, such as the Appointments Clause and the Treaty Clause, sheds light on the scope of unilateral power the Framers intended the clause to confer on the Executive Branch.
Examining the history of the Appointments Clause reveals that the Framers modeled the Senate’s role after the practice of advice and consent that existed in the Commonwealth of Massachusetts under British rule prior to the federal Constitutional Convention. That model prized an active role for the Senate in restraining the Executive Branch, and interpreted the Senate’s failure to act on Executive proposals as a valid rejection of those measures. Similarly, the Treaty Clause contemplated that the Senate would serve as a firm check on the President’s power to sign multilateral agreements. The history of these adjacent constitutional provisions, this Article argues, provides compelling evidence that the recent use of “pro forma” sessions is a constitutional method in the contemporary separation of powers arsenal for the Senate to preserve its right to reject a president’s nominees.
According to Victoria Nourse, The Constitution and Legislative History, 17 University of Pennsylvania Journal of Constitutional Law 313 (2014), the answer is “no.” From the conclusion of Nourse’s article:
It is time to retire the all-or-nothing 1980s debate about the constitutionality of legislative history. These arguments have been generally ignored by the vast majority of judges and the Supreme Court. New developments in the theory of statutory interpretation, including decision process theory, help to sharpen the critique of legislative history but at the same time retire the constitutional questions as they have been posed. When applied to legislative rules and proceedings, the arguments against the constitutionality of legislative history, are not supported by the text, history or structure of the Constitution.