From the abstract for Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, Columbia Law Review, Forthcoming:

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.

Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.

From the abstract for Clark D. Cunningham & Jesse Egbert, Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses, Fourth Annual Conference of Law & Corpus Linguistics (2019):

In interpreting the Constitution’s text, courts “are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from their technical meaning’.” District of Columbia v. Heller, 554 U.S. 570, 576 (2008). According to James Madison: “[W]hatever respect may be thought due to the intention of the Convention, which prepared and proposed the Constitution, as a presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed through the Conventions which ratified the Constitution.”

In looking for “presumptive evidence of the general understanding at the time of the language used” courts have generally relied on dictionary definitions and selected quotations from texts dating from the period of ratification. This paper presents a completely different, scientifically-grounded approach: applying the tools of linguistic analysis to “big data” about how written language was used at the time of ratification. This data became publicly available in Fall 2018 when the website of the Corpus of Founding Era American English (COFEA) was launched. COFEA contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.

The authors illustrate this scientific approach by analyzing the usage of the word emolument by writers in America during the period covered by COFEA, 1760-1799. The authors selected this project both because the interpretation of two clauses in the Constitution using emolument are of considerable current interest and because the meaning of emolument is a mystery to modern Americans.

The District of Columbia and State of Maryland are currently suing President Donald Trump alleging that his continued ownership of the Trump Hotel in Washington puts him in violation of Constitutional prohibitions on receiving or accepting “emoluments” from either foreign or state governments. The President’s primary line of defense is a narrow reading of emolument as “profit arising from an office or employ.”

The authors accessed every text in COFEA in which emolument appeared – over 2500 examples of actual usage – and analyzed all of these examples using three different computerized search methods. The authors found no evidence that emolument had a distinct narrow meaning of “profit arising from an office or employ.” All three analyses indicated just the opposite: emolument was consistently used and understood as a general and inclusive term.

From the abstract for If the Text is Clear–Lexical Ordering in Statutory Interpretation, 94 Notre Dame Law Review ___ (2018) by Adam M. Samaha:

Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed we should pause to reconsider whether these instructions are justified and whether judges can follow them.

This Article explores the core trade-offs and implementation challenges. On trade-offs, the Article spotlights decision quality, decision costs, and, less intuitively, decisiveness. Compared to aggregating all source inferences, lexical ordering threatens decision quality by sometimes throwing out useful information, but it can reduce decision costs and probably will increase the chance of a decisive judgment. Compared to flatly excluding lower-tier sources, lexical ordering probably yields higher quality decisions and decisiveness, but also higher decision costs. Whether the overall compromise seems tolerable depends on a series of debatable judgment calls. Moreover, the actual trade-offs depend on whether judges lexically order sources in their decision making, not only in their opinion writing. To date, we lack evidence either way.

The Article goes on to report results from a new vignette experiment conducted with approximately one-hundred appellate judges. These judges showed curiously mixed success at lexical ordering. In a trade name case, we find little evidence that judges were improperly influenced by legislative history. In an election law case, by contrast, we find evidence that judges were improperly influenced by an agency’s position. There is much more to learn about the patterns of judicial behavior in this field. For now, we should expect mixed judicial success at achieving the mixed advantages and disadvantages of lexical ordering. The hard trade-offs cannot be casually assumed or ignored. With that unsettling lesson, more courts might abandon lexical ordering’s complex and sometimes fragile architecture—or at least maintain respect for judges who are committed to less orthodox, more extreme, and simpler methods for deciding statutory cases.

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.

— Joe

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.

— Joe

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.

— Joe

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.

— Joe

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.

— Joe