Education Moulds

Paul Litton (University of Missouri School of Law) has posted Non-Beneficial Pediatric Research and the Best Interests Standard: A Legal and Ethical Reconciliation on SSRN.  Here is the abstract:

Federal efforts beginning in the 1990′s have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children for the good of all. But that rationale is troubling.

This Article answers two related questions: (1) What is the appropriate legal relationship between NBPR and the "best interests of the child" standard? (2) What is the ethical justification for this research? I argue that courts should hold that the "best interests" standard governs pediatric research. But, contrary to existing case law, courts must consider the benefits to each child, including pediatric subjects, from a policy that permits NBPR, and not simply consider that a non-beneficial protocol presents more risk than potential benefit to a child. Moreover, I argue that the justification for the practice need not be utilitarian. There is no need to appeal to the greater good to justify the research because each child has reason to endorse a policy permitting NBPR where there is a very low ceiling on acceptable risk, and each child has reason to participate in a practice from which she benefits. More controversially, I argue that each child, like other persons, has reason to help others when she can do so at little to no cost to herself. The Article then highlights practical implications of the offered justifications.

Source: Lawrence Solum

Richard J. Ross (University of Illinois College of Law) has posted Puritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of ‘Intensity’
(American Historical Review, Vol. 113, pp. 975-1002, 2008) on SSRN.  Here is the abstract:

Early Massachusetts (c1630-1660) is famous for the intensity of its drive for moral righteousness and a more fully Christianized society. This essay explores the reasons for this intensity by situating the colony in two frameworks seldom brought together: first, the comparative exploration of post-Reformation campaigns for godly discipline and confession building; and second, the comparative investigation of legal pluralism among New World settlements. A study of early Massachusetts allows consideration in a colonial context of the suggestion, raised by European historians, that there was an inverse relationship between the effectiveness of godly discipline and a polity’s degree of social complexity and legal pluralism. Contemporary presbyterian critics of Massachusetts discipline provide a way into the problem. They viewed the New England Way as deficient in the sorts of mechanisms for coordinating among congregations and between the civil and ecclesiastical realms available in Reformed polities such as Calvin’s Geneva and early seventeenth-century lowland Scotland, places of special significance in debates between presbyterians and congregationalists. These critics predicted that schism, oscillations between enthusiasm and lethargy, and inconsistent standards of judgment and administration among clashing churches and civil authorities would together undermine Massachusetts discipline. Part of the reason why they were wrong was that Massachusetts displayed low levels of social complexity (relative to European Reformed polities) and a modest degree of legal pluralism (by the standards of other New World settlements). Treating early Massachusetts as a case study within the context of scholarship on post-Reformation godly discipline and New World legal pluralism suggests alterations to these two flourishing literatures and offers ways to connect them. The colony’s experiences challenge the trajectory of change assumed by scholars of New World legal pluralism. The historiography on European confession building provides new ways of perceiving family resemblances among settlements in different empires that were pursuing parallel programs of intense godly discipline and Christian education. Evidence from the New World could contribute to debates among scholars of the post-Reformation European confessional age by demonstrating, in a number of colonial settings, how civil and clerical leaders committed to the pursuit of godly discipline benefited from modest levels of legal pluralism.

Source: Lawrence Solum

Richard J. Ross (University of Illinois College of Law) has posted Puritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of ‘Intensity’
(American Historical Review, Vol. 113, pp. 975-1002, 2008) on SSRN.  Here is the abstract:

Early Massachusetts (c1630-1660) is famous for the intensity of its drive for moral righteousness and a more fully Christianized society. This essay explores the reasons for this intensity by situating the colony in two frameworks seldom brought together: first, the comparative exploration of post-Reformation campaigns for godly discipline and confession building; and second, the comparative investigation of legal pluralism among New World settlements. A study of early Massachusetts allows consideration in a colonial context of the suggestion, raised by European historians, that there was an inverse relationship between the effectiveness of godly discipline and a polity’s degree of social complexity and legal pluralism. Contemporary presbyterian critics of Massachusetts discipline provide a way into the problem. They viewed the New England Way as deficient in the sorts of mechanisms for coordinating among congregations and between the civil and ecclesiastical realms available in Reformed polities such as Calvin’s Geneva and early seventeenth-century lowland Scotland, places of special significance in debates between presbyterians and congregationalists. These critics predicted that schism, oscillations between enthusiasm and lethargy, and inconsistent standards of judgment and administration among clashing churches and civil authorities would together undermine Massachusetts discipline. Part of the reason why they were wrong was that Massachusetts displayed low levels of social complexity (relative to European Reformed polities) and a modest degree of legal pluralism (by the standards of other New World settlements). Treating early Massachusetts as a case study within the context of scholarship on post-Reformation godly discipline and New World legal pluralism suggests alterations to these two flourishing literatures and offers ways to connect them. The colony’s experiences challenge the trajectory of change assumed by scholars of New World legal pluralism. The historiography on European confession building provides new ways of perceiving family resemblances among settlements in different empires that were pursuing parallel programs of intense godly discipline and Christian education. Evidence from the New World could contribute to debates among scholars of the post-Reformation European confessional age by demonstrating, in a number of colonial settings, how civil and clerical leaders committed to the pursuit of godly discipline benefited from modest levels of legal pluralism.

Source: Lawrence Solum

Francis Joseph Mootz III (William S. Boyd School of Law, UNLV) has posted Perelman in Legal Education: Recalling the Rhetorical Tradition of Isocrates and Vico on SSRN.  Here is the abstract:

his paper was presented on October 14, 2008 as part of a panel addressing "The Influence of Perelman in Legal Philosophy" at a conference hosted by the Perelman Center for the Philosophy of Law, Free University of Brussels.

I argue that Perelman’s philosophy is connected with legal practice, but that he never made the connections between his philosophy and legal education explicit. I refer to the work of Isocrates and Vico, and conclude that Perelman’s philosophy can teach us much about contemporary legal education as we strive to address the questions raised by the Carnegie Report.

Source: Lawrence Solum

Michael H. LeRoy (University of Illinois College of Law) has posted Crowning the New King: The Statutory Arbitrator and the Demise of Judicial Review
(Journal of Dispute Resolution, Vol. 29, No. 3, Spring 2009) on SSRN.  Here is the abstract:

Judicial review of arbitration awards is highly deferential- but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by requiring employees to arbitrate their claims? Judicial review of awards based on statutory claims is inadequate, and undermines the constitutional role of federal courts.

I explore these empirical findings from a historical perspective. English kings and merchants helped to fashion modern arbitration. Nearly 700 years ago, small merchants traded goods at fairs that operated under a royal franchise. Arbitrators improved the efficiency of these markets by adjudicating transactional disputes. This role was codified by the Statute of the Staple of 1353, where the king delegated his sovereign power to ensure the success of the fair.

I point to two prominent junctures – in 1698, and again in 1925 – when lawmakers in England and the U.S. believed that court litigation hampered commerce. They enacted similar statutes to authorize courts to confirm disputed awards, unless these private rulings resulted from corruption or misconduct. This deference grew out of practical considerations. The parties had chosen the arbitrator, agreed to the private process, and bound themselves to an industry norm.

Courts deferred so heavily to awards because William III wanted these merchant tribunals to be autonomous. His law, the 1698 Arbitration Act, did not allow courts to vacate awards for fact finding or legal errors. Great deference in its reviewing standards reflected the king’s infallibility.

My textual research shows that the FAA’s reviewing standards descended from William III. I suggest that our law crowns today’s statutory arbitrator with the king’s mantle of infallibility. But this deference is too extreme for awards that rule on statutory claims. In Gilmer v. Johnson/Interstate Lane Corp., the Supreme Court ignored the commercial history of arbitration when it broadly approved a theory of forum substitution. Gilmer said that arbitrators may decide statutory claims, even if one disputant objects to the forum and wishes, instead, to be heard by a court. The result is that the ruling of the arbitrator is subject to a narrower standard for review than an Article III judge’s order. Epitomizing this regal deference, a contemporary court said: "The arbiter was chosen to be the Judge. That Judge has spoken. There it ends." In textual and empirical analysis, I show that statutory arbitrations enjoy a presumption of royal infallibility. I conclude with two solutions for aligning the review of rulings by statutory arbitrators and Article III judges.

Source: Lawrence Solum

Anders Walker (Saint Louis University School of Law) has posted The Violent Bear it Away: Emmett Till & the Modernization of Law Enforcement in Mississippi
(San Diego Law Review, Forthcoming) on SSRN.  Here is the abstract:

Few racially motivated crimes have left a more lasting imprint on American memory than the death of Emmett Till. Yet, even as Till’s murder in Mississippi in 1955 has come to be remembered as a catalyst for the civil rights movement, it contributed to something else as well. Precisely because it came on the heels of the Supreme Court’s 1954 ruling in Brown v. Board of Education, Till’s death convinced Mississippi Governor James P. Coleman that certain aspects of the state’s handling of racial matters had to change. Afraid that popular outrage over racial violence might encourage federal intervention in the region, Coleman removed power from local sheriffs, expanded state police, and modernized the state’s criminal justice apparatus in order to reduce the chance of further racial violence in the state. Though his results proved mixed, many of Coleman’s reforms lived on, contributing to the end of public torture and lynching as an accepted mode of punishment in the state. This article discusses those changes, suggesting that they not only influenced the fight for civil rights, but encouraged the modernization of criminal justice in the South.

Source: Lawrence Solum

Peter Jaffe (Georgetown Journal of Law & Public Policy) has posted Varieties of Textualism: Unit of Analysis and Idiom in the Interpretation of 18 U.S.C. Sec. 924(C)
(Georgetown Journal of Law & Public Policy, Vol. 7, No. 1, 2008) on SSRN.  Here is the abstract:

In his essay A Matter of Interpretation, Justice Scalia draws a distinction between "reasonable" textualism and strict constructionism. However, Scalia does not precisely explain the distinction, and instead offers the interpretive problem of 18 U.S.C. Sec. 924(c) (prohibiting the use of a gun during and in relation to drug trafficking crimes) to elucidate the difference in approaches.In his essay A Matter of Interpretation, Justice Scalia draws a distinction between "reasonable" textualism and strict constructionism. However, Scalia does not precisely explain the distinction, and instead offers the interpretive problem of 18 U.S.C. Sec. 924(c) (prohibiting the use of a gun during and in relation to drug trafficking crimes) to elucidate the difference in approaches.

Judging from this example, it would appear that Scalia’s "reasonable" textualism differs from "strict constructionist" textualism in two respects. First, strict constructionism’s unit of analysis is the single word; it looks to the denotation of individual words and then constructs meaning from those words using the rules of grammar and textual canons of construction. Scalia’s textualism, on the other hand, recognizes not only words, but phrases, clauses, and sentences as indivisible units of meaning. Second, strict constructionism refuses to acknowledge literary devices such as the idiom. Scalia’s textualism, on the other hand, recognizes such literary devices in statutory text.

Recognizing these subtle differences in approach sheds light on why textualist judges occasionally come to different conclusions using ostensibly similar methods. Such differences in conclusion do not reflect empirical disagreements, but instead reflect subtle theoretical differences.

I really liked this paper–highly recommended.

A few quick observations:

• I have serious doubts about the continued usefulness of the phrase–"strict constrructionism."  Although I know believe that the phrase likely had a well-defined sense early in our constitutional history, it now seems obscure.  On this see, Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Much of the conceptual confusion that has arisen in both constitutional theory and in theories of statutory application results from the realist conflation of the interpretation-construction distinction.  (See generally Legal Theory Lexicon 063: Interpretation and Construction).  The distinction is an old one–it figures prominently in the history of doctrine in several fields.  Roughly, it can be stated as follows:
  • Interpretation is the practice of ascertaining the linguistic meaning or semantic content of a legal text (e.g., constitution, statute, contract, will, etc.).
  • Construction is the practice of translating semantic content into legal content.  For example, if the semantic content of a text is vague, then its application to a particular case may require a construction that draws a bright line (or resolves the vagueness using case-by-case balancing or some other technique).
• For this reason, the term "strict construction"–if it is to be retained in the vocabulary of contemporary legal theory should be used to express the following idea:

The legal content derived from a legal text should be strongly constrained by the semantic content.

Of course, this formulation is itself vague.  "Strong constraint" could itself be construed in various ways, for example:

The Principle of Consistency: Strong constraint could be construed as the requirement that the legal content derived from a text should be consistent with the semantic content.  (That is, no rule derived from the text may contradict the semantic content of the text.)

The Principle of Identity: Strong constraint could be construed as the requirement that the legal content derived from a text by courts should be identical with the semantic content.  (That is, no court should add supplementary rules (such as implementing rules) to rules that have legal content that is the contemporary legal translation of the linguistic meaning of the text.)

• Jaffe makes an important point when he notes the importance of two different approaches to discovery of the linguistic meaning (semantic content) of a text.  One begins with individual words and then applies the rules of syntax and grammar to derive the meaning of the text as a whole.  The second adds a preliminary step–determination whether there are phrases that have meanings that are distinct from the meaning of the individual words.  Here is a passage from the article:

Strict constructionist textualists and Scalia’s-kind-of-textualists
differ because the former select words as its unit of analysis, whereas the
latter select both words and larger units of analysis, such as phrases and clauses. More precisely, a strict constructionist textualist ascertains the
meaning of each word in a text151 and combines those meanings to
construct the text’s meaning.152 The strict constructionist may encounter a
group of related words placed together, where those words clearly inform
each others’ meanings; it will analyze each word individually, but treat the
surrounding words as context. On the other hand, a SKOT ascertains the
meaning not only of words but also of phrases and of clauses, and
combines those meanings to construct the meaning of the larger text.
When encountering a group of related words placed together, it will—
depending on the circumstances—treat surrounding words as an integral
part of the unit whose meaning is to be determined, rather than as mere
context for the unit whose meaning is to be determined. The subtle
difference between these approaches partially explains the different
outcomes between strict constructionists and SKOTs.

Although I think Jaffe has the labels wrong (he should be discussing interpretation and not construction), the substance is right.  And on this score, Scalia is surely correct that the linguistic meaning of an utterance is frequently not derivable from the individual words using the principle of compositionality (word plus syntax & grammer = meaning).  But how do we know when a phrase has an ideomatic meaning that is not equivalent to the meaning that would result from application of the principle of compositionality?

• This brings me to my final observation.  The linguistic meaning of an utterance is bound by context.  That is, the same string of words yields different semantic content in different contexts.

Read Jaffe.

My own take on many of these issues is provided in Semantic Originalism.

Source: Lawrence Solum

Jonathan Crowe (The University of Queensland – T.C. Beirne School of Law) has posted Self and Other in Ethics and Law: A Comment on Manderson
(Australian Journal of Legal Philosophy, Vol. 33, pp. 145-151, 2008) on SSRN.  Here is the abstract:

This article engages with Desmond Manderson’s recent book, Proximity, Levinas and the Soul of Law (2006). I begin by examining a vexed topic in Levinas scholarship: namely, the very possibility of a Levinasian legal theory. Manderson makes a constructive and, I think, important contribution to this question, insisting that Levinas does not require us to segregate the domains of ethics and law, as some interpreters have suggested. This basic issue provides us with a springboard to explore two other themes in Manderson’s reading of Levinas. The first concerns the relationship between self- and other-oriented approaches to ethical and legal discourse; the second, the role of ethical experience in informing and shaping judicial reasoning.

Source: Lawrence Solum

Jonathan Crowe (The University of Queensland – T.C. Beirne School of Law) has posted Self and Other in Ethics and Law: A Comment on Manderson
(Australian Journal of Legal Philosophy, Vol. 33, pp. 145-151, 2008) on SSRN.  Here is the abstract:

This article engages with Desmond Manderson’s recent book, Proximity, Levinas and the Soul of Law (2006). I begin by examining a vexed topic in Levinas scholarship: namely, the very possibility of a Levinasian legal theory. Manderson makes a constructive and, I think, important contribution to this question, insisting that Levinas does not require us to segregate the domains of ethics and law, as some interpreters have suggested. This basic issue provides us with a springboard to explore two other themes in Manderson’s reading of Levinas. The first concerns the relationship between self- and other-oriented approaches to ethical and legal discourse; the second, the role of ethical experience in informing and shaping judicial reasoning.

Source: Lawrence Solum

Patrick Macklem (University of Toronto – Faculty of Law) has posted Indigenous Recognition in International Law: Theoretical Observations (Michigan International Law Journal, Vol. 30, No. 1, 2008) on SSRN.  Here is the abstract:

Drawing on a classic essay by Hans Kelsen, this Article addresses the status of indigenous peoples in international law. It argues that the criteria for determining the legal existence of indigenous peoples in international law are a function of the nature and purpose of international indigenous rights. The twentieth century legal history of international indigenous rights, from their origins in international protection of indigenous workers in colonies to their contemporary expression in the United Nations Declaration on the Rights of Indigenous Peoples, demonstrates that their purpose is to mitigate injustices produced by how the international legal order treats sovereignty as a legal entitlement that it distributes among collectivities it recognizes as states. The criteria by which indigenous peoples can be said to exist in international law relate to their historic exclusion from the distribution of sovereignty initiated by colonization that lies at the heart of the international legal order.

Source: Lawrence Solum