Ted Seto has the most cogent short explanation of the current financial crisis of which I am aware on his blog, Understanding Tax. Typical Seto–brilliant and illuminating.
Source: Lawrence Solum
It may be unlikely, but arguably that would be the result required by the United States Constitution–because there is a serious question whether John McCain is eligible to become President of the United States. This topic is explored in depth in an online symposium published by the University of Michicgan Law Review. Here are links to the Online & PDF versions of papers by Gabriel Chin, Daniel Tokaji, Peter Spiro, Stephen Sachs and myself:
An Online Symposium on Senator John McCain and Natural Born Citizenship
[View PDF of entire symposium]Senator John McCain, the current Republican Party nominee for President, was born in the Panama Canal Zone in 1936. The circumstances of his birth raise the question of whether he is a "natural born citizen" as required by Article II, section 1 of the Constitution. The symposium contributors explore both the substance of this issue and the methods used to resolve it.
Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship[HTML] [PDF]
Gabriel J. Chin, University of Arizona Law School
Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.
Originalism and the Natural Born Citizen Clause[HTML] [PDF]
Lawrence B. Solum, University of Illinois Law School
The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.
The Justiciability of Eligibility: May Courts Decide Who Can Be President?[HTML] [PDF]
Daniel P. Tokaji, The Ohio State University, Moritz College of Law
The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.
McCain’s Citizenship and Constitutional Method[HTML] [PDF]
Peter J. Spiro, Temple University Beasley School of Law
Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.
Why John McCain Was a Citizen at Birth[HTML] [PDF]
Stephen E. Sachs
Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a “natural born Citizen” eligible to be president.
Source: Lawrence Solum
Cass R. Sunstein (Harvard University - Harvard Law School) has posted Beyond Judicial Minimalism on SSRN. Here is the abstract:
Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.
I would have provided excerpts and commentary, but this is an image file. (And I’ll never get anything else done if I start retyping papers into Legal Theory Blog!)
This is an important extension of Sunstein’s theory of judicial minimalism–essential reading for anyone interested in general jurisprudence. Highly recommended. Download it while its hot.
Source: Lawrence Solum
Michael Perry (Emory University School of Law) has posted Human Rights as Morality, Human Rights as Law on SSRN. Here is the abstract:
There has been growing interest in, and scholarly attention to, issues and questions that arise within the subject matter domain we may call "human rights theory". See, in particular, Amartya Sen, "Elements of a Theory of Human Rights," 32 Philosophy & Public Affairs 315 (2004); James W. Nickel, Making Sense of Human Rights (rev. ed. 2006); Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts (2007); James Griffin, On Human Rights (2008); Nicholas Wolterstorff, Justice: Rights and Wrongs (2008). This essay - a version of which will appear in a multi-authored collection of essays to be published by Oxford University Press in 2009 - is intended as a contribution to human rights theory. These are the principal questions, or sets of questions, I address in the essay:
1. What is the morality of human rights - by which I mean the morality that, according to the International Bill of Human Rights, is the principal warrant for the law of human rights?
2. How does the morality of human rights warrant the law of human rights?
3. Some human-rights-claims are legal claims, but some are moral claims, and some are both. What does a human-rights-claim of the legal sort mean? A human-rights-claim of the moral sort? And when does it make sense to think of a right that only some human beings have - children, for example - as a human right?
4. Is there a plausible secular ground for the morality of human rights?
5. At the end of the proverbial day, what difference does it make - why should we care - if there is no plausible secular ground for the morality of human rights?
Comments and questions welcome.
Source: Lawrence Solum
Lawrence Rosenthal (Chapman University - School of Law) has posted The Emerging First Amendment Law of Managerial Prerogative ( Fordham Law Review, Vol. 77, p. 103, 2008) on SSRN. Here is the abstract:
In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because his expressions were made pursuant to his duties…. The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.
This article rejects the scholarly consensus on Garcetti. The critics’ claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney’s office to the public; therefore his speech could not have advanced the public’s understanding and evaluation of the district attorney’s performance. Moreover, although the Court’s opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment’s commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court’s opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.
The article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court’s prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices - and therefore are fairly held politically accountable for the operations of those offices. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative.
Part II considers the implications of this new law of managerial prerogative in another employment-related context - laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four Members of the United States Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment.
In Part III, the article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom - an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives.
Source: Lawrence Solum
Duncan B. Hollis and Joshua J. Newcomer (Temple University - James E. Beasley School of Law) have posted ‘Political’ Commitments and the Constitution (Virginia Journal of International Law, Vol. 49, No. 3, 2009) on SSRN. Here is the abstract:
This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political - or, non-legally binding - commitments as alternatives to its treaties, but the Executive’s authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.
This paper challenges such views. We contend that the Constitution regulates the President’s ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive’s use of political commitments while guiding decisions on when Congress must require information about-or even approval of-them. We conclude by applying our framework to the Iraqi security agreements.
Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution’s basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.
Source: Lawrence Solum
Duncan B. Hollis and Joshua J. Newcomer (Temple University - James E. Beasley School of Law) have posted ‘Political’ Commitments and the Constitution (Virginia Journal of International Law, Vol. 49, No. 3, 2009) on SSRN. Here is the abstract:
This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political - or, non-legally binding - commitments as alternatives to its treaties, but the Executive’s authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.
This paper challenges such views. We contend that the Constitution regulates the President’s ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive’s use of political commitments while guiding decisions on when Congress must require information about-or even approval of-them. We conclude by applying our framework to the Iraqi security agreements.
Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution’s basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.
Source: Lawrence Solum
Chris Dent and Ian Cook (University of Melbourne - Law School) have posted Stare Decisis, Repetition and Understanding Common Law (Griffith Law Review, Vol. 16, No. 1, pp. 131-150, 2007) on SSRN. Here is the abstract:
The works of Michel Foucault have not, so far, been employed so as to enable an adequate understanding of the functioning of the law. This article begins to remedy this situation. Past uses of Foucault’s work have failed to provide a satisfactory account of the relationship between the juridical and the disciplinary aspects of "the law" in general. The application of his ideas to the practice of the common law offers a way forward. In this article, we use Foucault’s ideas of discursive formations and discursive practices to understand the operation of the doctrine of stare decisis in the common law. It is uncontroversial to assert that the doctrine is difficult to define - this analysis demonstrates that this signifies its "always/already" nature. The understanding applied here indicates that stare decisis is best seen as a set of discursive practices - the most significant of which relates to the repetition of past legal statements. The doctrine, as a result, is both fundamental to the operation of the common law as a discursive formation and constitutive of those who participate in, and perpetuate, it - the lawyers and judges.
Source: Lawrence Solum
Chris Dent and Ian Cook (University of Melbourne - Law School) have posted Stare Decisis, Repetition and Understanding Common Law (Griffith Law Review, Vol. 16, No. 1, pp. 131-150, 2007) on SSRN. Here is the abstract:
The works of Michel Foucault have not, so far, been employed so as to enable an adequate understanding of the functioning of the law. This article begins to remedy this situation. Past uses of Foucault’s work have failed to provide a satisfactory account of the relationship between the juridical and the disciplinary aspects of "the law" in general. The application of his ideas to the practice of the common law offers a way forward. In this article, we use Foucault’s ideas of discursive formations and discursive practices to understand the operation of the doctrine of stare decisis in the common law. It is uncontroversial to assert that the doctrine is difficult to define - this analysis demonstrates that this signifies its "always/already" nature. The understanding applied here indicates that stare decisis is best seen as a set of discursive practices - the most significant of which relates to the repetition of past legal statements. The doctrine, as a result, is both fundamental to the operation of the common law as a discursive formation and constitutive of those who participate in, and perpetuate, it - the lawyers and judges.
Source: Lawrence Solum
Edwin S. Fruehwald (Hofstra University - School of Law) has posted Reciprocal Altruism as the Basis for Contract on SSRN. Here is the abstract:
Behavioral Biology illuminates the basis of contract. Behavioral biologists believe that genes are selfish; they are only interested in their survival. However, reciprocal altruism - "I’ll scratch your back if you scratch mine" - provides a basis for cooperation among humans that promotes survival. If two humans cooperate in obtaining and allocating resources, they will have greater resources and a greater chance to survive and reproduce, thus continuing their genes. Contract law reflects and reinforces this reciprocal altruism from our evolutionary past.
Connected with reciprocal altruism is a human instinct for equity in reciprocal exchanges. Humans can detect unfair situations and rectify them. Evolutionary fairness is reflected in the contract rules of frustration, unconscionability, and mistake, as well as the good faith duty in performance and unconscionability. Also connected with reciprocal altruism is the need to punish cheaters. In contract law, cheaters-those who breach the contract-are punished through contract remedies. Finally, contract law helps deal with the evolutionary problem of time-shifted rationality, where individuals value what they have over what they can gain in the future.
Part II of this paper will discuss traditional theories of contract law, including the objective theory of contract formation, deontological and consequentialist approaches, redistributive theories, and more recent theories by Professor Solan (contract as agreement) and Professor Markovits (contract as collaboration). Part III will introduce behavioral biology and explain reciprocal altruism and related doctrines, such as cheating and time-shifted rationality. It will also show that neuroscientific studies support the existence of reciprocal altruism and related behavioral mechanisms. Part IV will then analyze the relationship between reciprocal altruism and contract law. It will argue that reciprocal altruism is the best explanation for the formation of contracts, compare reciprocal altruism as the basis of contract to the theories discussed in Part II, examine the other necessary element for contract validity - consideration - under reciprocal altruism, and give a justification for courts to enforce contracts under reciprocal altruism. Part V will demonstrate that contract damages are the glue for reciprocal altruism and that expectation damages are the proper measure of damages under this approach. Finally, Part VI will deal with reciprocal altruism and other contract issues-gap filling, unallocated risks, good faith in performance, and unconscionability.
Source: Lawrence Solum
