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.

— Joe

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.

— Joe

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.

— Joe

Ronald Collins’ interview of Adam Winkler about his new book, We the Corporations: How American Businesses Won Their Civil Rights (Liveright, Feb. 27, 2018), for SCOTUSblog piqued my interest in Winkler’s new book. Here’s the blurb:

We the Corporations chronicles the astonishing story of one of the most successful yet least well-known “civil rights movements” in American history. Hardly oppressed like women and minorities, business corporations, too, have fought since the nation’s earliest days to gain equal rights under the Constitution?and today have nearly all the same rights as ordinary people.

Exposing the historical origins of Citizens United and Hobby Lobby, Adam Winkler explains how those controversial Supreme Court decisions extending free speech and religious liberty to corporations were the capstone of a centuries-long struggle over corporate personhood and constitutional protections for business. Beginning his account in the colonial era, Winkler reveals the profound influence corporations had on the birth of democracy and on the shape of the Constitution itself. Once the Constitution was ratified, corporations quickly sought to gain the rights it guaranteed. The first Supreme Court case on the rights of corporations was decided in 1809, a half-century before the first comparable cases on the rights of African Americans or women. Ever since, corporations have waged a persistent and remarkably fruitful campaign to win an ever-greater share of individual rights.

Although corporations never marched on Washington, they employed many of the same strategies of more familiar civil rights struggles: civil disobedience, test cases, and novel legal claims made in a purposeful effort to reshape the law. Indeed, corporations have often been unheralded innovators in constitutional law, and several of the individual rights Americans hold most dear were first secured in lawsuits brought by businesses.

Winkler enlivens his narrative with a flair for storytelling and a colorful cast of characters: among others, Daniel Webster, America’s greatest advocate, who argued some of the earliest corporate rights cases on behalf of his business clients; Roger Taney, the reviled Chief Justice, who surprisingly fought to limit protections for corporations?in part to protect slavery; and Roscoe Conkling, a renowned politician who deceived the Supreme Court in a brazen effort to win for corporations the rights added to the Constitution for the freed slaves. Alexander Hamilton, Teddy Roosevelt, Huey Long, Ralph Nader, Louis Brandeis, and even Thurgood Marshall all played starring roles in the story of the corporate rights movement.

In this heated political age, nothing can be timelier than Winkler’s tour de force, which shows how America’s most powerful corporations won our most fundamental rights and turned the Constitution into a weapon to impede the regulation of big business.

Recommended. — Joe

Here’s the abstract for The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640, 146 Univ. of Penn. Law Review 323 (1998), by Richard J. Ross:

Should the laws of England be printed? What were the likely effects of different strategies of dissemination? From the early sixteenth century through the English Revolution, these questions framed a debate among English lawyers over the propriety, advantages and risks of legal publication. Advocates of law printing envisioned national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. Opponents, like the barrister William Hudson, warned of releasing the inner reasons and fictions of the law “to the multitude, who are apt to furnish themselves with shifts to cloak their wickedness, rather than to gain understanding to further the government of the Commonwealth.” Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print’s impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training.

This essay pursues an intellectual history of law publishing. It explores lawyers’ uncertain, divisive, and changing opinions about the effects and meanings of the legal press – their attacks, defenses, interpretations, aspirations, and warnings.

The story unfolds in four sections. The first explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order. As it dissolved obscurantism, its friends claimed, the legal press solidified obedience to kingly authority against local, seigneurial, and ecclesiastical rivals.

The second section discusses how an emerging group of latter sixteenth-century skeptics such as Hudson, the “anti-publicists,” questioned these irenic predictions about the effects of lawbooks. Disorder, degeneracy, and disunion were their counter-prophesies. Absolutist and high church conformist suspicions of “publicity” inclined anti-publicists to disapprove of revealing the law’s inner reasons and fictions. They wanted it to speak in a voice of command, not persuasion.

The third section explores the contexts engendering the debate and making plausible the disputants’ contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation.

The fourth and final section reflects on how the controversy over law printing implicated a larger change in English legal culture: the “commoning” of the common law. In reaction to the anti-publicist critique, publicists helped further the gradual redefinition of the law as a national inheritance rather than a guild or royal possession. They defended popular right of access to the inner reasons of the law, valorized lay rather than royal or guild “ownership” of the law, and brought out the latent constitutionalist implications of legal printing. In the realm of perception, they helped transform the laws of the realm of England into the laws of Englishmen.

Interesting. — Joe

From the abstract for Alan K. Chen & Justin F. Marceau, Developing a Taxonomy of Lies Under the First Amendment, 89 U Colorado Law Review 655 (2018):

In previous work, we argued that the First Amendment limits the power of government to regulate lies that, paradoxically, promote the democracy and truth-finding functions of free speech. See Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 VAND. L. REV. 1435 (2015). In doing so, we claimed that the Supreme Court had previously protected lies solely to avoid chilling truthful speech, and not because they might have intrinsic value in our constitutional democracy. In that work, we did not fully address a related question – under what circumstances are lies subject to valid government regulation because they cause material harm or yield material gains to the speaker. What harms and benefits count to disqualify a lie from first Amendment coverage? Contemporary controversies about the role of falsehoods in our democracy, ranging from investigative deceptions to facilitate undercover investigations by activists on both the left and the right, to a Presidential campaign filled with claims that both major party candidates were liars, to an apparent epidemic of fake news stories on social media, suggest that there exists some urgency to further define the contours of the First Amendment’s protection of lies.

The Supreme Court’s fractured decision in United States v. Alvarez offers some clues, but does not elaborate sufficiently to explain the boundaries of constitutional protection for lies. For instance, Justice Kennedy’s plurality opinion distinguished laws that regulate lies because those falsehoods cause some form of “legally cognizable harm” from laws that regulate lies without reference to such harms. In addition, Justice Kennedy notes that one of the flaws of the Stolen Valor Act was that it did not limit criminal liability to those who lied about military honors to gain a “material advantage.” Similarly, in his concurring opinion, Justice Breyer observed that the saving feature of most statutory and common law provisions prohibiting lies was that they typically require “proof of injury.” But these limiting principles are stated at too great a level of generality to be useful. All lies cause some harm to the listener or produce some benefit to the speaker. The harm or benefit might often be largely abstract, symbolic, or psychological, but there is still a harm or a benefit. Indeed, all of the Court’s opinions in Alvarez acknowledge there is some harm associated with lies told about earning military honors, including a general dilution of the prestige associated with such honors, and there was some benefit to Alvarez in telling the lie to his local, political constituents. Yet six of the current eight Justices agreed that the lie in question fell within the protections of the First Amendment.

In this article, we explore what the Alvarez Court did not. We set out some general parameters to guide courts in determining whether the harms or gains resulting from a particular lie are sufficiently material to justify excluding the lie from First Amendment coverage. Some cases are easy even under existing doctrine, before and after Alvarez. Perpetrating a fraud to persuade a person to give away money unequivocally causes both harm to the victim and material gain to the speaker, both of which provide a sufficient state interest to allow punishment of the lie. But do other types of more intangible benefits to the liar count as material gains under Alvarez? A lie might bring a feeling of satisfaction from having fooled another. What if lying makes one feel better about her place in the world? What if it enhances one’s political agenda, providing benefits to one’s psyche and self-esteem? May the state proscribe a lie that leads to information used in an award-winning piece of investigative journalism because it yielded a material gain to both author and publication? What about a lie that generates favorable publicity, which then leads to more donations to an advocacy group with which the liar is affiliated? And in the context of political campaigns, what about a lie designed to get a voter to favor a particular candidate or ballot measure? For that matter, should lies on political topics receive more or less protection because of the context? Does the motive for the lie matter? Is a lie designed to produce truth within the ambit of free speech doctrine even if it causes harm or produces benefits to the liar?

Ultimately, we argue that many lies will be protected even though they will produce some benefit to the speaker and some harm to the listener. Lies that are consistent with the values and goals of free speech will receive the most protection. Some benefit-producing and harm-causing lies that are largely worthless, as with the lie in Alvarez, will also be protected. There may need to be a middle category of lies that receive some protection, but may be regulated as long as the state meets some form of intermediate scrutiny. And those lies that cause tangible harm or produce material benefits in contexts that are divorced from the underlying purposes of free speech theory will not be protected, and indeed not covered by the First Amendment at all.

— Joe

Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Florida Law Review ___ (2018) by Neomi Rao “provides a modern reconsideration of why Congress still matters by examining the “collective Congress” within the text, structure, and history of the Constitution. Like the unitary executive, the collective Congress is a structural feature of the Constitution’s separation of powers. With deep roots in political theory, the Framers created a representative and collective legislature that would provide a legitimate mechanism for bringing together the nation’s diverse interests to most effectively pursue the common good. To fully realize the benefits of collective lawmaking, the Constitution insists on the double exclusivity of the legislative power: only Congress can exercise legislative power, and Congress possesses only legislative power. The Constitution ties the ambitions of representatives and senators to Congress as an institution by prohibiting members of Congress from exercising the executive or judicial powers. This structure supports the members’ fiduciary responsibilities to the people, minimizes corruption, and reinforces the independence and integrity of the lawmaking power.

“Understanding the principles of a collective Congress provides a framework for analyzing a range of separation of powers questions, particularly those arising from the delegation of legislative power to administrative agencies. Quite simply, presidential control of administration cannot replace congressional control of legislation. Congress remains relevant in our complex modern society because it provides a unique form of accountability for ascertaining and pursuing the public good, preserving the rule of law, and protecting individual liberty. The collective Congress provides a powerful conceptual framework for understanding the scope of the Constitution’s “legislative power” and how Congress may exercise it. The administrative state blurs the line between the executive and legislative powers. The collective Congress sharpens that line and helps explain why Congress still matters in our system of government.”

— Joe

Here’s the abstract for James Miller’s The Emergence of ‘Computer Science and Law’: The New Legal Paradigm for Law and Policy Practice in the Computational Age of Algorithmic Reasoning and Big Data Practice (2018):

Some thirty years ago “law and economics” emerged as a new paradigm of legal reasoning by providing new legal resolutions to a set a problems that were particularly suited to the application of economics in the legal process. Today algorithms and data, software-based systems, and technology solutions like blockchain both stress existing legal practice and offer new avenues for solving legal problems. This paper proposes that the rise of “computer science and law” as a new legal paradigm is emerging in ways that leverage and respond to the application and ability of computer science knowledge and reasoning to answer novel and venerable legal problems.

The paper’s analytic approach maps the boundaries of law and computer science in this new paradigm, against the stressors that necessitate new approaches with the value of technology solutions already revolutionizing other sectors. The paper answers questions such as what is persuasive or explanatory about law, what social function does it serve, and how is legal reasoning distinctive from philosophy, sociology, economics, and computer science? Following this analytic approach, the paper presents the current evolution of legal pedagogy, practice, and expectations and contributes to a deeper comparative understanding of how law can serve important social goals.

The paper begins with a definitional section. Descriptions from jurisprudence and legal theory provide a baseline of how philosophy and social sciences differentiate “law” from other disciplines, based on the nature of the reasoning, justifications, outcomes and knowledge that law entails. Leveraging what is distinctive about legal reasoning and knowledge, a historical review of computer and data science and artificial intelligence provides a view of the evolution of reasoning and knowledge is modeled using software to accomplish tasks relevant to law.

The paper explores how legal practice is evolving to challenges and opportunities posed by computational systems. The paper reviews the “legalhacker” movement that began as a software programming and policy advocacy effort and other “computation law” examples of innovations in law and policy practice, and focus on technology policy issues. A survey of new legal pedagogy focused on teaching data science, software programming and other technical skills reveals a roadmap of computer science skillsets and techniques that are a current focus for legal educators. Review and comparisons of the information technology response of “legaltech” with “fintech” IT innovations focused on finance or other sectors will reveal the relative trends and strengths observed in the space.

Finally, two analytic approaches are proposed for evaluating the strength of new technology tools and law and policy practice approaches. A set of key features identify metrics for evaluating automating legal reasoning systems ability to predict, explain, and defend legal decisions. A roadmap of technical skills and areas of focus for new law and policy practitioners provide a useful rubric for development of new practice groups, outsourcing and IT strategies, and legal training focused on “computer science and law” practice.

Whether the challenge of legal practice in administrative law with comment dockets numbering in the tens of millions, protecting fundamental legal principles in practices using complex software systems controlling the fate of defendants, or improving and expanding access to law and policy services, the paper describes the expanding role of computer science and law and a path forward for legal practitioners in the computational age.

Interesting. — Joe

From the abstract of Edward H. Sisson’s Conduct of 153 American Founders on the Right to Bear Arms in Resistance to Their Government They Wanted to Keep, But Keep Within Bounds (Sept. 18, 2017):

What we know today as the “Second Amendment” was recommended to the then-11 States of the United States on September 25, 1789, by the 22-person US Senate and the 59-person US House of Representatives of the United States in the First United States Congress. What had these 81 individuals done, in their own lives, in arms, during the time when they acknowledged King George the Third to be their lawful king – and wanted to keep him as their king, and to keep themselves as his subjects?

Enquiring into the evidence of their words and conduct became the first research subject of this study. The researcher then saw grounds to expand the study to United States Supreme Court Justices, US Judges, US Presidents, US Vice Presidents, and US Cabinet officers. The list of individuals to examine grew from 81 to 153 persons.

The study also necessarily included examination of the kind of government that the 153 individuals thought they had had in the past, and were trying to keep for the future; examination of the individuals who were trying to change that government; and why they were trying to change that government. The study required ascertaining what was the government the 153 individuals were trying to keep, but keep within bounds, and who it was, and why, that some other group of people was trying to change the bounds of that government. This drew the study back from the actual armed resistance period of 1775-1776, to 1767 up to 1775.

The following are the results of that study. The results show that of the 153 people examined, not one opposed the right to bear arms against their own recognized lawful government, if the use of arms was to keep that government within the bounds they recognized it to have. 111 created direct, personal evidence, admissible in a hypothetical “British armed-treason trial” conducted on July 5, 1776, to convict them of having actively exercised the personal right to use personal arms against their own recognized lawful government, to keep that government within the bounds they recognized it to have. Another 8 created circumstantial evidence of the same, for a total of 119. 34 left no evidence discoverable today, in 2017, that the British could have used to convict them on July 5, 1776.

To the 119, it was not “treason,” but “restoration” they fought for, in the “resistance” period. In essence, they fought to prevent those who commanded the government from trying to change the government. The 119 fought to prevent the commanders of their government from committing treason against the very government they commanded.

— Joe

Here’s the abstract for Jason Mazzone’s The Bill of Rights in the Early State Courts, 92 Minnesota Law Review 1 (2007):

The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments, and the jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the Federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-twentieth century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check.

The history of the Federal Bill of Rights in the early state courts points also to some deficiencies of modern constitutional law. Compared to the antebellum era, constitutional law today is radically consolidated. Among other things, state courts cannot extend federal constitutional protections beyond the limits the Supreme Court itself sets; this leaves individuals with fewer places to turn to protect their rights. Consolidation is also inconsistent with federalism. The historical practice of allowing state courts leeway to interpret independently the Federal Constitution reflected the importance of state courts in our constitutional design and the benefits that accrue to the system as a whole when individual state courts are able to make different choices. In addition, consolidation has weakened state constitutional law, as developed and applied by the state courts. Incorporation of federal constitutional protections, as defined by the Supreme Court, has displaced state constitutional law as the principal source of individual rights. Rather than decide independently what provisions of their own state constitutions mean, state courts have tended to hew to the Supreme Court’s understandings of analogous provisions in the Federal Constitution. State courts have lost their voices under the Federal Constitution and they have fallen out of practice speaking under their state constitutions. Finally, consolidation helps account for the enormous tension that is characteristic of our current regime when federal constitutional rights are, ultimately, dependent upon the decisions of the Supreme Court.

— Joe

From the abstract for Peter J. Hill, The Ideological Origins of the Rule of Law (Apr. 20, 2018):

The background conditions for the emergence of the rule of law are important but underdeveloped. This paper traces more fully the relationship between the concept of human equality and the development of the rule of law. It presents evidence that the Jewish and Christian concept of all human beings as God’s image bearers is an important contributor to the rule of law in Western civilization. The formulation of universal human equality was not, however, a sufficient condition for the emergence of the rule of law. It took centuries of articulation in different institutions and social settings. It only reached full fruition when it was joined with an understanding of appropriate political systems as expressed by political theorists such as Locke, Montesquieu, and Madison.

— Joe

In Failures of American Methods of Lawmaking in Historical and Comparative Perspectives (Cambridge UP, Mar. 8, 2018), James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and would be a solution for the American legal system as well. — Joe

In Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change, 51 Connecticut Law Review __ (2018), Stephen M. Griffin argues that “prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton. The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change.

“Impeachment scholarship has been predominantly originalist. There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.” The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses. Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law. Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different. Contrary to prior legal scholarship, I argue that a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

“I use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.” The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of an alternative methodology called “developmental” analysis. Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments. These baselines then form the new context going forward for evaluating the constitutionality of official action.”

Interesting. — Joe