Martin Minot has posted his note The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries, 104 Virginia Law Review 1359 (2018). Here is the abstract:
This Note challenges William Blackstone’s modern position as the “oracle of the law” in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone’s influence, as told by the significant circulation of his work. It turns instead to the work’s practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes-referred to as commonplace books-to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered While Blackstone was apparently known to these late colonists, his work was far from “the most widely read law book in eighteenth-century America. ” Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.
H/T Legal History Blog.
From the abstract for Tonya L. Brito, The Right to Civil Counsel, Dædalus, Winter 2019:
The U.S. Constitution grants no categorical right to counsel in civil cases. Undaunted, the legal profession’s renewed effort to improve access to justice for low-income unrepresented civil litigants includes a movement to establish this right. How this right is implemented turns out to be as important as whether such a right exists. To be effective, any new right must be national in scope, adequately funded, and protected from political influence. Lawyers must be available early and often in the legal process, so that they can provide assistance for the full scope of their client’s legal problem and prevent further legal troubles. A right to civil counsel should encompass proceedings where basic needs are at stake, and not be influenced by inadequately informed judgments of who is worthy of representation.
H/T to Legal History Blog for calling attention to Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History, by Robert W. Gordon published in the Winter 2019 issue of Dædalus. Here’s the abstract:
Ideally, justice is a universal good: the law protects equally the rights of the rich and powerful, the poor and marginal. In reality, the major share of legal services goes to business entities and wealthy people and the prestige and prosperity to the lawyers who serve them. This essay deals with the history of access to justice – chiefly civil justice – and with the role of lawyers and organized legal professions in promoting and restricting that access. In the last century, legal professionals and others have taken small steps to provide access to legal processes and legal advice to people who could not otherwise afford them. By doing so, they have inched closer to the ideals of universal justice. Though the organized bar has repeatedly served its own interests before those of the public, and has restricted access to justice for the poor, it has been a relatively constructive force.
Lawrence B. Solum’s Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate (Jan. 28, 2019) “explores the conceptual structure of the great debate about ‘originalism’ and ‘living constitutionalism.’ The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories.”
H/T to Legal Theory Blog for calling attention to Benjamin Pomerance’s Justices Denied: The Peculiar History of Rejected United States Supreme Court Nominees (Albany Law Review, Vol. 80, No. 2, 2017). Here’s the abstract:
Every nominee to the United States Supreme Court possesses the potential to change history. It is therefore instructive, from both a historical perspective and a political perspective, to examine the nominees who reached the United States Senate, only to be voted down by the Senators. In some cases, the rejections seem understandable on the basis of merit (or lack thereof); in other situations, these rejections appear to be little more than a partisan attack. In every situation, however, the story of the rejected jurist and the context of his rejection by the Senate offers a compelling window into this era of American history, as well as a set of lessons that remain applicable to Supreme Court nominations today. From John Rutledge to Robert Bork, this article provides the stories of these Court nominees whom the Senate rejected, concluding with several revealing patterns and trends that today’s leaders would be wise not to ignore.
From the abstract for Brian G. Slocum, Ordinary Meaning and Empiricism, Statute Law Review, Forthcoming:
Statutory interpretation involves an interpreter determining the meaning of the text on the basis of various interpretive tools, all of which relate to the meaning of the words and their composition in light of the relevant context. Recently, with the increasing availability of scientific research tools such as corpus linguistics, advocates of such methods have stressed that statutory interpretation is an “empirical” inquiry. These claims fail to appreciate the contribution that context makes to meaning, both within and outside of law. Determinants of legal meaning must all relate in some way to the context of the relevant statute, whether the connection is to its language or the circumstances surrounding its enactment. Courts give (sometimes conclusive) weight to the statutory text, which implicates the systematicities of language and constrains the interpretations available to judges. Nevertheless, the ineliminably contextual nature of language, along with such legal features as the necessity of framing the interpretive inquiry in terms of an idealized interpreter, reveal legal interpretation to be a discretionary process, which should negate any claim that the determination of the meaning of a statute is primarily, or even largely, an empirical issue.
From the abstract for Roy Shapira, Law As Source: How the Legal System Facilitates Investigative Journalism, 37 Yale Law & Policy Review ___ (2018, Forthcoming):
Legal scholars have long recognized that the media plays a key role in assuring the proper functioning of political and business markets. Yet we have understudied the role of law in assuring effective media scrutiny. This Article develops a theory of law as source. The basic premise is that the law not only regulates what the media can or cannot say, but also facilitates media scrutiny by producing information. Specifically, law enforcement actions, such as litigation or regulatory investigations, extract information on the behavior of powerful players in business or government. Journalists can then translate the information into biting investigative reports and diffuse them widely, thereby shaping players’ reputations and norms. Levels of accountability in society are therefore not simply a function of the effectiveness of the courts as a watchdog or the media as a watchdog, but rather a function of the interactions between the two watchdogs.
This Article approaches, from multiple angles, the questions of how and how much the media relies on legal sources. I analyze the content of projects that won investigative reporting prizes in the past two decades; interview forty veteran reporters; scour a reporters-only database of tip sheets and how-to manuals; go over syllabi of investigative reporting courses; and synthesize insights from the communication science and economics of information literatures. The triangulation of these different methods produces three sets of insights. First, this Article establishes that legal sources matter: in today’s information environment, court documents, depositions, and regulatory reports are often the most instrumental sources of accountability journalism. Second, the Article identifies how and why legal sources matter: they extract quality information on the (mis)behavior of powerful players in a credible, libel-proof manner. Finally, recognizing the function of law as source opens up space for rethinking important legal institutions according to how they contribute to information production. In the process, we get to reevaluate timely debates, such as the desirability of one-sided arbitration clauses, which have been at the center of recent Trump Administration orders and Supreme Court decisions.
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