Education Moulds

Adam M. Dodek (University of Ottawa – Faculty of Law) has posted The Dutiful Conscript: An Originalist View of Justice Wilson’s Conception of Charter Rights and Their Limits
(Supreme Court Law Review, No. 2, p. 331, 2008) on SSRN.  Here is the abstract:

During her relatively short time on the Supreme Court of Canada (1982-1991), Justice Bertha Wilson constructed an independent and distinct approach to the relationship between rights and their limits under the Canadian Charter of Rights and Freedoms (the "Charter"). To Justice Wilson, judicial review was a duty imposed on the courts by the Charter through a deliberate and high-profile democratic process. Her conception of the judicial role under the Charter draws its sustenance from a strong historical claim about both the purpose and the process of rights entrenchment under the Charter. Properly understood, Justice Wilson’s vision of the relationship between rights and their limits under the Charter is an originalist one – one that is based on the assertion that the legitimacy of the judicial interpretative role finds its source in the events of 1980-82 when the Charter was enacted.

This article analyzes Justice Wilson’s conception of rights and limits under the Charter and demonstrates how it is anchored in a normative vision of the events of 1980-82. It then demonstrates how this originalist conception of the Charter permeated Justice Wilson’s model of the relationship between rights and their limits, mostly, but not exclusively, through her section 1 jurisprudence. This part distinguishes between the multiple meanings of Oakes – the case, the framework and the test – and shows how Justice Wilson focused on the much stricter Oakes framework while her colleagues were relaxing the Oakes test. This part further shows how Justice Wilson’s fidelity to the strictness of the Oakes framework translated into her staunch insistence on section 1 as the sole source of limits on rights, her fixation on onus and evidence and her understanding of the relationship between section 1 and other sections of the Charter. Finally, this article ends with a brief conclusion on the themes of constitutional duty and destiny.

And from the text:

Originalism is either ignored or denigrated in Canada. While
American scholars have developed a rich and sometimes nuanced
originalist scholarship,11 in Canada academic examination of the subject
is sparse.12 Moreover, in Canada there is a tendency to simply equate
originalism with “framers’ intent” — the strand of originalism which
holds that the subjective intentions of the framers of the Constitution
should be the authoritative normative source for the interpretation of its
substantive provisions. This is further equated with the widely
discredited “frozen rights theory” under the Canadian Bill of Rights.13
Under this dominant interpretative theory of the bill, the rights protected
by the Canadian Bill of Rights were only those that were in existence at
the time that the bill was enacted, i.e., 1960. This led critics to label it
“the frozen rights theory” and helped fuel the push for a constitutional
bill of rights which would both consist of and be capable of growth beyond the rights frozen in the 1960 Canadian Bill of Rights. Framers’
intent was associated with the frozen rights theory because it too focuses
on the particular meaning ascribed to specific rights at their point of
enactment. The Supreme Court explicitly rejected the frozen rights
theory for the interpretation of the Charter.14

Justice Wilson explicitly disavowed framers’ intent and embraced a
purposive approach to constitutional interpretation consistent with the
living tree doctrine which sees the Constitution as “capable of growth
and expansion within its natural limits”.15

* * *

Justice Wilson’s originalism is of the moderate variant. It does not
require that judges be bound by the specific meaning of the document
for those who gave it legal authority, but rather that they should be
guided by the original understanding of the Charter at a higher level of
abstraction. By this I mean “the motives, expectations, fears, and
aspirations that surrounded the enactment of the document in 1982”.27
This includes both the written record and the general context
surrounding the enactment of the Charter.

Very interesting and highly recommended.

One short comment: The article relies on the "original intent," "original meaing," "original understanding" schema for conceptualizing forms of originalism.  I have yet to see a theoretically rigorous explication of the "original understanding" that actually differentiates it from the other two–once "understanding" is cashed out, it seems to slide into some form of intentionalism (e.g., original expected applications) or into some version of original public meaning originalism.  Thus, in the last quoted passage–"motives", "expectations", etc. are intentional mental states.

ana

Source: Lawrence Solum

Brian Leiter (University of Chicago Law School) has posted The Epistemic Status of the Human Sciences: Critical Reflections on Foucault on SSRN.  Here is the abstract:

Any reader of Foucault’s corpus recognizes fairly quickly that it is animated by an ethical impulse, namely, to liberate individuals from a kind of oppression from which they suffer. This oppression, however, does not involve the familiar tyranny of the Leviathan or the totalitarian state; it exploits instead values that the victim of oppression herself accepts, and which then leads the oppressed agent to be complicit in her subjugation. It also depends, crucially, on a skeptical thesis about the epistemology of the social sciences. It is this conjunction of claims-that individuals oppress themselves in virtue of certain moral and epistemic norms they accept-that marks Foucault’s uniquely disturbing contribution to the literature whose diagnostic aim is, with Max Weber, to understand the oppressive character of modernity, and whose moral aim is, with the Frankfurt School, human liberation and human flourishing. I offer here both a reconstruction of Foucault’s project – focusing on the role that ethical and epistemic norms play in how agents subjugate themselves – and some modestly critical reflections on his project, especially the weaknesses in his critique of the epistemic standing of the human sciences.

Great paper–I would love to have given you more of the text, but Leiter has a "Do Not Quote" request.  Both the reconstruction & the critique are illuminating.

Le

Source: Lawrence Solum

Marc Jonathan Blitz (Oklahoma City University) has posted The Freedom of 3D Thought: The First Amendment in Virtual Reality
(Cardozo Law Review, Vol. 30, No. 3) on SSRN.  Here is the abstract:

Unlike the virtual worlds of the present, which appear to us on two-dimensional computer screens, the virtual worlds of the near future will likely be 3D worlds that swallow our perceptual universe. In such an electronic environment, we don’t merely move an "Avatar" on a virtual street; we have the experience of walking upon it ourselves. The street life we see consists not of computer animations confined to a rectangular interface, but pedestrians, street vendors, and cars that appear to move all around us. 

Such virtual reality (or VR) technology has long had a prominent place in science fiction – from the first episode of the Twilight Zone almost fifty years ago, to the cyberpunk of writers like William Gibson and Neal Stephenson, to Star Trek: The Next Generation’s Holodeck, to the film, The Matrix. Thanks to Robert Nozick’s "Experience Machine," it has also has a place in philosophy. According to a recent news report, an "immersive cocoon" – set to be available in 2014 – may soon give it a place in people’s living rooms.

This article seeks to understand its place in First Amendment law. My question, in short, is whether the actions we take in our personal Holodeck would count as "speech" or other First Amendment-protected activity. The First Amendment right to freedom of speech generally protects expression, not non-expressive conduct, such as driving a car, flying an airplane, or having sex. So where in this familiar First Amendment dichotomy does one place the convincing replica of non-expressive conduct that becomes possible inside a fully immersive VR world? Are we engaging in First Amendment "speech" when we drive a phantom car, pilot an illusory plane, or have virtual sex, and if so, why do activities such as these-which generally count as "non-expressive" conduct, unprotected by the First Amendment, in the physical world-suddenly become "expressive" in a 3D virtual world? In short, courts confronting such questions will have to decide whether VR’s convincing illusions are First Amendment "speech," like the movies or video games of which they are arguably three-dimensional analogues, or "conduct" like the actions they mimic. 

Perhaps the most natural way to address this challenge is to ask, using the Supreme Court’s test in Spence v. Washington, whether the virtual conduct is an activity that conveys a "particularized message" under circumstances in which an audience will be likely to understand that message ("the Spence test"), or, alternatively (under the exception to the Spence test established in Hurley v. Irish-American, Gay, Lesbian & Bisexual Group of Boston) is analogous to a medium already recognized as expression, such as a parade, a painting, or a musical composition. Under such a framework, a virtual reality car ride or sexual encounter will not count as speech when people seek it for the same (non-expressive and non-artistic) reasons they seek out the real-life equivalent. 

This article, however, argues that such an approach is a flawed one when it applies to a private and solitary VR experience, like the one an individual would have in an adventure inside a real-life Experience Machine. When VR is used privately, I argue, it is best conceived as a technologically-sophisticated representation of individuals’ fantasy life and, as such, should receive the same First Amendment protection that individuals receive when they draw sequences from a daydream or write thoughts in a journal. In fact, I argue, recognizing this helps us better mark out both the scope of First Amendment freedom of speech as well as the distinct protection that the First Amendment offers for our freedom of thought (as recognized in cases such as Stanley v. Georgia and Wooley v. Maynard). While the Spence test may help draw the boundaries of what counts as "speech" in communication or other dialogue, it should not guide us in determining what counts as "speech" or "thought" in unshared representations of our imagined worlds or actions. I argue here that private VR experience can help mark out these boundaries by clarifying (1) why such experience should count as solitary and protected speech of the kind we engage in when we draw a picture or write a poem for our own benefit and (2) why such experience should also come under the coverage of the First Amendment freedom of thought set out in Stanley v. Georgia. The same protections, I further argue, should also bar the government from thwarting our use of "telepresence" to create the illusion of being transported to another place in the real world, even though such VR experiences link us to the outside world in ways not true of films or books we watch or read in our own homes.

Apart from providing us with an initial framework for applying the First Amendment to the revolutionary changes promised by VR, this analysis of VR’s status under the First Amendment can also help us to think more carefully and systematically about how First Amendment freedom of thought might apply to other activity in the external world that is closely intertwined with thought (such as use of psychotropic medication or drugs to generate certain mental states, or observations that we make of the natural world or surrounding environment to gather certain kinds of information from sources other than speech).

Source: Lawrence Solum

Alexia Gaudeul , Laurence Mathieu and Chiara Peroni (University of East Anglia – School of Economics , University of East Anglia – Centre for Competition Policy and University of East Anglia) have posted Blogs and the Economics of Reciprocal Attention on SSRN.  Here is the abstract:

Blogs differ from other media in that authors are usually not remunerated and inscribe themselves in communities of similarly minded individuals. Bloggers value reciprocal attention, interaction with other bloggers and information from reading other blogs; they value being read but also writing itself, irrespective of an audience. A novel dataset from a major blogging community, Livejournal, is used to verify predictions from a model of social networking. Content production and blogging activity are found to be related to the size and degree of asymmetry of the relational networks in which bloggers are inscribed.

From the paper:

• "Hypothesis 1 Bloggers who display higher levels of content production and general blogging
  activity have a higher number of readers (H1)."
• "Hypothesis 2 Bloggers with less friends than readers (who are read by more bloggers
  than they read blogs) produce more content than others. Bloggers with more friends than
  readers (who read more blogs than other bloggers read them) have less content than others
  (H2)."

ROFL, but also definitely recommended to those interested in network economics or blogging!

Source: Lawrence Solum

Michael B. Landau
(Georgia State University – College of Law) has posted What If the Anti-Bootlegging Statutes are Upheld Under the Commerce Clause?
(Michigan State Law Review, 2008) on SSRN.  Here is the abstract: 

The United States has altered its copyright laws to be more in conformity with the European Union and the WIPO. In doing so, the laws of the United States have brushed against the Constitution. Most of the constitutional challenges to the laws have been unsuccessful. In the case of the "anti-bootlegging" statutes, however, the courts have been all over the place with their constitutional analysis. While the "anti-bootlegging" statutes were promulgated under the Copyright Clause, and included in Title 17, courts have upheld them under the Commerce Clause – despite no mention of the commerce clause at all in the legislative history. Commerce Clause authority for what is a copyright type legislation sets up a bizarre precedent, for it can render the commerce clause superfluous, or even worse, have perpetual protection for non-copyrightable works. The Supreme Court should get one of the cases eventually, but for now we have Commerce Clause authority for granting perpetual protection to live musical performance.

Source: Lawrence Solum

Michael B. Landau
(Georgia State University – College of Law) has posted What If the Anti-Bootlegging Statutes are Upheld Under the Commerce Clause?
(Michigan State Law Review, 2008) on SSRN.  Here is the abstract: 

The United States has altered its copyright laws to be more in conformity with the European Union and the WIPO. In doing so, the laws of the United States have brushed against the Constitution. Most of the constitutional challenges to the laws have been unsuccessful. In the case of the "anti-bootlegging" statutes, however, the courts have been all over the place with their constitutional analysis. While the "anti-bootlegging" statutes were promulgated under the Copyright Clause, and included in Title 17, courts have upheld them under the Commerce Clause – despite no mention of the commerce clause at all in the legislative history. Commerce Clause authority for what is a copyright type legislation sets up a bizarre precedent, for it can render the commerce clause superfluous, or even worse, have perpetual protection for non-copyrightable works. The Supreme Court should get one of the cases eventually, but for now we have Commerce Clause authority for granting perpetual protection to live musical performance.

Source: Lawrence Solum

Ben Saul
(University of Sydney – Faculty of Law) has posted The Curious Element of Motive in Definitions of Terrorism: Essential Ingredient – Or Criminalising Thought?
(LAW AND LIBERTY IN THE WAR ON TERROR, A. Lynch, E. MacDonald, & G. Williams, eds., pp. 28-38, Federation Press, Sydney, 2007) on SSRN.  Here is the abstract:

Controversy has erupted in many jurisdictions about the inclusion of a motive element in the criminal law definition of terrorism, in particular whether reference to a political, religious or ideological purpose or cause unjustifiably interferes in freedom of expression and freedom of religion, or invites racial or religious discrimination. This article argues that a compelling reason for including a motive element in an international or domestic definition of terrorist offences is that it helps to differentiate terrorism from other kinds of serious violence which may also generate fear (such as common assault, armed robbery, rape, or murder), while also according with commonplace public understanding of what constitutes terrorism. As such, the criminal law should recognise this distinction in defining terrorism, so as to more accurately express what is considered by the international and national communities to be distinctively wrongful about terrorism. Inevitably, this view reflects judgments of policy, politics and ethics, which may not be shared by all; but it is the critical impulse underlying arguments for including motive in definitions of terrorism.

Source: Lawrence Solum

Ben Saul
(University of Sydney – Faculty of Law) has posted The Curious Element of Motive in Definitions of Terrorism: Essential Ingredient – Or Criminalising Thought?
(LAW AND LIBERTY IN THE WAR ON TERROR, A. Lynch, E. MacDonald, & G. Williams, eds., pp. 28-38, Federation Press, Sydney, 2007) on SSRN.  Here is the abstract:

Controversy has erupted in many jurisdictions about the inclusion of a motive element in the criminal law definition of terrorism, in particular whether reference to a political, religious or ideological purpose or cause unjustifiably interferes in freedom of expression and freedom of religion, or invites racial or religious discrimination. This article argues that a compelling reason for including a motive element in an international or domestic definition of terrorist offences is that it helps to differentiate terrorism from other kinds of serious violence which may also generate fear (such as common assault, armed robbery, rape, or murder), while also according with commonplace public understanding of what constitutes terrorism. As such, the criminal law should recognise this distinction in defining terrorism, so as to more accurately express what is considered by the international and national communities to be distinctively wrongful about terrorism. Inevitably, this view reflects judgments of policy, politics and ethics, which may not be shared by all; but it is the critical impulse underlying arguments for including motive in definitions of terrorism.

Source: Lawrence Solum

Meredith Johnson Harbach (New York University) has posted Is the Family a Federal Question? (Washington & Lee Law Review, Vol. 66, March 2009) on SSRN.  Here is the abstract:

There has long been conflict over the relationship between the states and the federal system vis-a-vis the family. The traditional account of domestic relations describes family law as the exclusive domain of the states, and federal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception’s applicability to diversity jurisdiction, the intersection of federal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts’ willingness to expand the "domestic relations exception" to include federal question cases.

The Article proceeds in three parts. In Part I, I describe the emerging trend in federal courts of avoiding decision on federal questions implicating the family, either by expanding the domestic relations exception, or by using other avoidance doctrines as proxies to accomplish the same result. I also explain how Supreme Court dicta in Elk Grove Independent School District v. Newdow has exacerbated this trend. In Part II, I assess critically how and why federal courts are avoiding these questions, considering the potential doctrinal and policy bases for an expansive exception, and evaluating its potential scope. I conclude that there is no principled doctrinal or policy basis for an expanded domestic relations exception that includes federal questions.

Part III shifts to a more normative and theoretical perspective, evaluating whether federal courts should defer to the states when facing federal questions affecting the family. Here, I argue that there is instrumental and normative value in preserving a federal forum. I also argue that, because an expanded domestic relations exception would subordinate litigants, cause expressive harm, and potentially trigger negative cultural consequences, federal courts should resist expansion. The Article concludes with some reflections on the implications of my analysis and emphasizes the important role of federal courts in supporting, empowering, and protecting contemporary American families.

A very thorough analysis of an area of civil procedure that I have always "taken for granted."  Recommended to anyone interested in the jurisdiction of the federal courts.

Source: Lawrence Solum

Meredith Johnson Harbach (New York University) has posted Is the Family a Federal Question? (Washington & Lee Law Review, Vol. 66, March 2009) on SSRN.  Here is the abstract:

There has long been conflict over the relationship between the states and the federal system vis-a-vis the family. The traditional account of domestic relations describes family law as the exclusive domain of the states, and federal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception’s applicability to diversity jurisdiction, the intersection of federal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts’ willingness to expand the "domestic relations exception" to include federal question cases.

The Article proceeds in three parts. In Part I, I describe the emerging trend in federal courts of avoiding decision on federal questions implicating the family, either by expanding the domestic relations exception, or by using other avoidance doctrines as proxies to accomplish the same result. I also explain how Supreme Court dicta in Elk Grove Independent School District v. Newdow has exacerbated this trend. In Part II, I assess critically how and why federal courts are avoiding these questions, considering the potential doctrinal and policy bases for an expansive exception, and evaluating its potential scope. I conclude that there is no principled doctrinal or policy basis for an expanded domestic relations exception that includes federal questions.

Part III shifts to a more normative and theoretical perspective, evaluating whether federal courts should defer to the states when facing federal questions affecting the family. Here, I argue that there is instrumental and normative value in preserving a federal forum. I also argue that, because an expanded domestic relations exception would subordinate litigants, cause expressive harm, and potentially trigger negative cultural consequences, federal courts should resist expansion. The Article concludes with some reflections on the implications of my analysis and emphasizes the important role of federal courts in supporting, empowering, and protecting contemporary American families.

A very thorough analysis of an area of civil procedure that I have always "taken for granted."  Recommended to anyone interested in the jurisdiction of the federal courts.

Source: Lawrence Solum