Education Moulds

Reid Krell (University of Alabama – School of Law) has posted The Ivory Tower Under Siege: The First Amendment’s Ability to Protect Academic Freedom on SSRN.  Here is the abstract:

n Garcetti v. Ceballos, the Supreme Court held that public employees who speak within the scope of their jobs are not protected by the Pickering balancing test. The Court reserved the issue of whether academics, who may make controversial speech within the course of their academic work and suffer retaliation, are subject to the Garcetti rule. This paper outlines the current thinking of how the various academic freedom claims within the First Amendment play out, and then offers a new way to resolve such a case. The First Amendment defines the contours of the professor’s claim, but it is the Contract Clause that animates the claim. Essentially, what the university is asking for is authority to breach the employment agreement because the professor was in compliance with the employment agreement. Judicial sanction of such an action eviscerates contract unconstitutionally.

Source: Lawrence Solum

John T. Parry (Lewis & Clark Law School) has posted Rights and Discretion in Criminal Procedure’s ‘War on Terror’
(Ohio State Journal of Criminal Law, Vol. 6, No. 1, 2008) on SSRN.  Here is the abstract:

The premise of this essay is that the modern administrative state’s need for discretion and flexibility and its tendency to govern through emergency have a discernable impact on the structure of criminal procedure doctrine in the United States. The current War on Terror that fully emerged after September 11, 2001 increases the desire for discretion and flexibility and influences the course of doctrine, but it has not changed doctrine in any fundamental way. Building on that premise, my goal is to explore how the development of criminal procedure doctrines over the last three decades or so reflects and assists a way of governing a state and its citizens, a process that responds to but also transcends particular events such as the War on Drugs or the War on Terror. In the approach to criminal procedure doctrine that I sketch, flexible but meaningful rights are integrated into flexible but professional police practices, with the goal of allowing careful calibration by private individuals and government officials of the various interests that are at play in a modern, liberal, administrative state.

Source: Lawrence Solum

Thomas R. Lee (Brigham Young University – J. Reuben Clark Law School) has posted Abercrombie Unveiled: A Theoretical and Empirical Analysis of Trademark Distinctiveness on SSRN.  Here is the abstract:

The
word mark taxonomy established in Abercrombie is a longstanding tenet
of doctrinal orthodoxy. Lawmakers have so oft restated the Abercrombie
classes and so consistently rehearsed the theoretical grounds that
undergird them that it no longer occurs to us to question their
premises. But there are good reasons-both pragmatic and theoretical
ones-to question the Abercrombie system.

At the practical level,
it should be noted that the perceived objectivity and predictability of
the Abercrombie classification system are a mirage. The law is
incessantly and understandably searching for fixed lodestars to guide
and cabin judicial and administrative decision-making. Abercrombie
offers the appearance of such a lodestar at the threshold stage of
evaluating trademark distinctiveness-in the form of a five-level
classification system that channels the availability, timing, and
degree of trademark protection. Yet although some of those
classifications turn on bright-line, objective criteria, that cannot be
said of the classification that matters most-of the line between the
"suggestive" and the "merely descriptive." Courts and commentators have
long lamented the subjectivity and arbitrariness of sorting word marks
between these two classifications, and that pragmatic problem gives
substantial grounds for an agnostic skepticism toward the Abercrombie
orthodoxy.

In terms of theory, trademark law is ripe for a
thorough reevaluation in the light of the tools employed in the
scholarly study of consumer psychology and behavior. The law’s
reflexive restatement of the grounds for its treatment of "merely
descriptive" word marks-that they are unlikely to be perceived by
consumers as indicators of source-is a glaring reminder that the law in
this field turns on questions well beyond the competence of those
trained in the art of legal analysis and interpretation. Where (as
here) the law depends on answers to questions that are the focus of an
entire field of scholarly study, we cannot afford to proceed in
arrogant ignorance of the insights offered by such a field of expertise.

In
this case, the field of consumer psychology has much to offer the law
of trademark distinctiveness. Perceptual schema theory provides ample
grounds for doubting the law’s myopic focus on the semantic meaning of
a descriptive word mark. A consumer who encounters a descriptive word
mark in its "trademark use" context may well perceive it as a source
indicator on the basis of the mark’s non-linguistic cues or indicators
of meaning. Those non-linguistic indicators will be provided in large
part by the consumer’s perceptual models and expectations of a typical
brand or source indicator in commercial context. If the descriptive
word mark is presented in a spatial layout, size, and placement that
matches the consumer’s general schematic mental model of what a brand
looks like, the word may be perceived as a source indicator even if its
semantic meaning is "merely descriptive."

Our theoretical model
provides grounds for skepticism of Abercrombie; our empirical study
completely undermines it. In other words, perceptual schema theory
offers a reason to wonder whether and to what extent non-linguistic
signs may overwhelm the linguistic signs credited by the law-to
consider the possibility that even "merely descriptive" word marks
might nonetheless be perceived as source indicators when the
non-linguistic markers that accompany their trademark use overshadow
their semantic meaning. But empirical analysis can-and does-provide
concrete answers to the question of the relative impact of the
linguistic and non-linguistic indicators of distinctiveness.

Our
empirical studies show that Abercrombie rests on an erroneous
assumption about the predominant impact of semantic word meaning. So
long as the word is used in an "average" trademark use context, a word
mark’s semantic meaning is shown to be overshadowed by the
non-linguistic, contextual markers that establish its distinctiveness
as a source indicator.

Source: Lawrence Solum

Caroline M. Pelser (University of Utrecht – Faculty of Law) has posted Preparations to Commit a Crime: The Dutch Approach to Inchoate Offences
(Utrecht Law Review, Vol. 4, No. 3, pp. 57-80, December 2008) on SSRN.  Here is the abstract:

In combating (organised) crime and terrorism, the emphasis is not placed on responding to committed offences, but on the thwarting thereof. For that reason, criminal law includes inchoate offences, which permit law enforcement intervention before the intended substantive offence is completed. In the last few years, inchoate offences have been expanded in most countries, partly because of national developments, partly in order to comply with agreements made in the EU or UN context. That is also the case for the Netherlands. The aim of this article is to provide a clear picture of the Dutch approach to inchoate crime and the Dutch way of dealing with the current tendencies to approximate substantive criminal law.

Source: Lawrence Solum

Michael R. Baye and Joshua D. Wright (Indiana University Bloomington – Department of Business Economics & Public Policy and George Mason University – School of Law) have posted Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial Training on Appeals on SSRN.  Here is the abstract:

Modern antitrust litigation sometimes involves complex expert economic and econometric analysis. While this boom in the demand for economic analysis and expert testimony has clearly improved the welfare of economists-and schools offering basic economic training to judges-little is known about the empirical effects of economic complexity or judges’ economic training on decision-making in antitrust litigation. We use a unique data set on antitrust litigation in district courts during 1996-2006 to examine whether economic complexity impacts decisions in antitrust cases, and thereby provide a novel test of the frequently asserted hypothesis that antitrust analysis has become too complex for generalist judges. We also examine the impact of one institutional response to economic complexity: basic economic training by judges. We find that decisions involving the evaluation of complex economic evidence are significantly more likely to be appealed, and decisions of judges trained in basic economics are significantly less likely to be appealed than are decisions by their untrained counterparts. Our results are robust to a variety of controls, including the type of case, circuit, and the political party of the judge. Our tentative conclusion, based on a revealed preference argument that views a party’s appeal decision as an indication that the district court got the economics wrong, is that there is support for the hypothesis that some antitrust cases are too complicated for generalist judges.

Source: Lawrence Solum

Michael R. Baye and Joshua D. Wright (Indiana University Bloomington – Department of Business Economics & Public Policy and George Mason University – School of Law) have posted Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial Training on Appeals on SSRN.  Here is the abstract:

Modern antitrust litigation sometimes involves complex expert economic and econometric analysis. While this boom in the demand for economic analysis and expert testimony has clearly improved the welfare of economists-and schools offering basic economic training to judges-little is known about the empirical effects of economic complexity or judges’ economic training on decision-making in antitrust litigation. We use a unique data set on antitrust litigation in district courts during 1996-2006 to examine whether economic complexity impacts decisions in antitrust cases, and thereby provide a novel test of the frequently asserted hypothesis that antitrust analysis has become too complex for generalist judges. We also examine the impact of one institutional response to economic complexity: basic economic training by judges. We find that decisions involving the evaluation of complex economic evidence are significantly more likely to be appealed, and decisions of judges trained in basic economics are significantly less likely to be appealed than are decisions by their untrained counterparts. Our results are robust to a variety of controls, including the type of case, circuit, and the political party of the judge. Our tentative conclusion, based on a revealed preference argument that views a party’s appeal decision as an indication that the district court got the economics wrong, is that there is support for the hypothesis that some antitrust cases are too complicated for generalist judges.

Source: Lawrence Solum

Matyas Bodig (University of Aberdeen – College of Arts and Social Sciences) has posted Rules, Principles, and the Problem of the Limits of Legal Reasoning on SSRN.  Here is the abstract:

The analysis picks out one possible use of the concept of principle. The pertinent use concerns the way extra-legal normative claims influence the understanding of the normative character of law and the limits of legal reasoning. It can be based on a contrast between internal and external justification of law. In light of that distinction, legal rules are taken as ‘intra-systemic’ elements of law while principles are depicted as resulting from reflection on the ways legal rules operate. Legal principles originate from external (moral and political) discourses that concern justificatory issues of law. The conceptual devices of the analysis are used to ‘recontextualize’ the old debate over legal formalism. Distinctions are drawn between formalism (Kelsen), radical anti-formalism (Unger), strong anti-formalism (Michael Moore), and modest anti-formalism. The paper argues for modest anti-formalism which accepts that internal justification is an intelligible and justifiable framework for handling legal problems but argues that considerations associated with the external justification of law may and sometimes should figure in legal reasoning. The attractiveness of modest anti-formalism comes from its ability of accounting for the reflective self-critical aspect of law. The analysis, after considering Dickinson’s and Dworkin’s versions modest anti-formalism, leads to the conclusion that one cannot make a strong case for modest anti-formalism without connecting the problem of legal reasoning to issues of institutional design.

Source: Lawrence Solum

Francis Joseph Mootz III (William S. Boyd School of Law, UNLV) has posted Faithful Hermeneutics (Michigan State Law Review, 2009) on SSRN.  Here is the abstract:

This
article was presented at the Annual Meeting of the Association of
American Law Schools on January 9, 2009 as part of a panel on
"Scriptural and Constitutional Hermeneutics." The panel was
co-sponsored by the Law and Religion Section, Section on Jewish Law,
and Section on Islamic Law, and the papers will be published by the
Michigan State Law Review.

My article compares legal and
religious hermeneutics by exploring the dual nature of what I term
"faithful hermeneutics." The ambiguity evoked by this phrase is
intentional. On one hand, it suggests an investigation of the
relationship between legal and religious interpretation by comparing
hermeneutical activities undertaken by faithful adherents to these two
different textual traditions. In this first sense, it is to compare how
these practices are the hermeneutics of the faithful. On the other
hand, the phrase suggests an analysis of how interpreters in these two
traditions remain faithful to the nature of their practice. In this
second sense, it is to compare how hermeneutics can be faithfully
accomplished. My thesis is that these two senses of "faithful
hermeneutics" are connected. The fact that it is faithful adherents who
engage in the interpretive practice in large part defines how they can,
and should, remain faithful to the interpretive enterprise.

I
anchor my argument in Hans-Georg Gadamer’s critique of historicism, in
which he references the practices of legal and religious hermeneutics.
Gadamer’s philosophical hermeneutics explains how faith is a
prerequisite of understanding, even as understanding revitalizes and
reshapes the faith one brings to a textual tradition. I then unfold the
critical dimensions of faithful hermeneutics by comparing the work of
Cardinal Joseph Ratzinger (later Pope Benedict XVI) and Gianni Vattimo
on the Catholic tradition. I argue that these two thinkers display both
the broad range and the non-methodological character of the critical
insights of faithful hermeneutics.

I conclude by suggesting
that the parallels between religious and legal hermeneutics is
instructive, but that we remember that it would be a mistake to
conflate these two instances of faithful hermeneutics in our secular
age.

Source: Lawrence Solum

Introduction 

Back in the day (by which I mean the mid-70s through the mid-90s)
big normative theories were all the rage in the legal academy.  It’s
hard to be sure, but one suspects that it started with Rawls: when A Theory of Justice
hit the legal academy, it produced a dramatic shift in the practice of
normative legal argument in the academy (and even had ripples in legal
practice).  Rawls’s big normative theory was "justice as fairness" with
two famous principles, the liberty principle and the difference principle supported by a complex argument employing ideas like the original position, the veil of ignorance, and reflective equilibrium.
From Rawls, it was only a hop, skip, and jump to a variety of other
theories drawn from moral and political philosophy–Kantian deontology,
utilitarianism, welfarism, and other forms of consequentialism,
Nozick’s libertarainism, civic replublicanism, and on and on and on.

Ronald Dworkin played a key role in this movement with his famous
distinction between the criteria of "fit" and "justification."  When
two or more views of the law have sufficient "fit" with the cases,
statutes, and other legal materials, Dworkin argued, hard cases must be
resolved by asking which view accords with the best justification for
the law.  So if there are two or more interpretations of the equal
protection clause that fit the text and the cases, we should choose the
interpretation that accords with our best theory of equality–and that
is likely to be a big normative theory.

Indeed, there was a time when those in the know, the cognoscenti of
the legal academy, subscribed to what was widely know as the "theory of the month club."  But
something became quite clear as the years became decades: there were no
winners in the debates between and among the advocates of big normative
theories.  Skirmishes and battles were won and lost, but there were
no declarations of victory, surrenders, or peace treaties in the theory
wars.

So it was probably inevitable that there should be some sort of
reaction–an antitheoretical counterrevolution.  And there was–or
rather, there were several reactions.  One move was away from the
normative altogether and towards positive law and economics and
empirical legal studies.  Another move was away from abstract theories
and towards contextual approaches to feminist legal theory and critical
race theory.  And yet another move was to pragmatism–a term
that resonates with both the heritage of American philosophical
pragmatism (Pierce, James, and Dewey) and the appeal of common sense in
its particularly lawyerly form–the preoccupation with the practical.

This entry in the Legal Theory Lexicon provides an
introduction to "legal pragmatism" for law students, especially
first-year law students, with an interest in legal theory.  As always,
the Lexicon provides a "quick and dirty" introduction to a topic on which whole articles and books can and have been written.

Philosophical Pragmatism

Legal pragmatism is related to (but distinct from) philosophical
pragmatism.  Pragmatism is usually associated with three American
philosophers–Charles Sanders Pierce (pronounced "purse"), William James, and John Dewey.
Attempting to define a conceptual core of philosphical pragmatism is an
enterprise frauth with peril–the major pragamtists disagreed among
themselves and there never was a "pragmatism program" with a set of
common tenets or principles.  One idea that is associated with
pragmatism is the notion that beliefs are neither true nor false, but
instead are helpful or unhelpful for the accomplishment of goals or the
success of actions.  Another notion is the idea that "truth" is a
function of practices of verification (the making and testing of
predictions).

The following passage from William James’s Pragmatism is both famous and gives the flavor (if not the philosophical substance) of philosophical pragmatism:

Pragmatism
asks its usual question. "Grant an idea or belief to be true," it says,
"what concrete difference will its being true make in anyone’s actual
life? How will the truth be realized? What experiences will be
different from those which would obtain if the belief were false? What,
in short, is the truth’s cash-value in experiential terms?"

William James, Pragmatism (1907).

Three Ideas

As you might expect, legal pragmatism focuses on neither
the theory of truth nor the theory of meaning and is instead directed
at the normative and the role of normative theory in legal practice.
There are many ways in which we might approach this relationship.
Let’s focus on three ideas that illuminate legal pragmatism: (1) the
idea of practical judgment, (2) the idea of particularism, and (3) the
notion of antitheory.

Practical Judgment  One way to think
about legal pragmatism begins with the distinction between "practical
judgment" (and the allied notion of "practical wisdom") and
"theoretical judgment."  No one doubts that legal practice involves
"practical judgment."  Judges and lawyers cannot limit their activity
to the theoretical realm.  The decision of a case is always
contextual–conditioned by a history of facts and by the concrete
consequences that attend to a decision.  Legal pragmatism emphasizes
the idea that practical judgment is an ineliminable part of legal
reasoning and may even make the stronger claim that the practical
trumps the theoretical if the two are in conflict.

Paticularism  Another way to approach legal pragmatism is via
the an idea that is sometimes called "the priority of the particular."
This phrase is shorthand for the assertion that judgments (or
intuitions or considered judgments) about particular cases have
priority over theoretical judgments about broad classes or categories
of cases.  What does "priority" mean in this context?  One answer to
this question is that the priority of the particular means that our
judgments about particular cases are firmer, more grounded, and less
subject to revision than are our beliefs about theory.  In other words,
when a theory collides with a firmly held belief about what is right or
wrong in a particular case, it is the theory and not the judgment about
the case that will have to give way.

Antitheory (or Antifoundationalism)  And a final way to
approach legal pragmatism is based on the notion that legal pragmatism
is anitheoretical (or antifoundational).  Let me back up a bit to
explain this point.  Some philosophers are suspicious of "big" "top
down" normative theories generally, and there are "antitheoretical"
positions in moral and political philosophy.  What does it mean to be
antitheoretical?  One formulation expresses opposition to deductive
systems–to be antitheoretical is to be oppose a method that begins
with axioms and then proceeds to deduce the theorems and corollaries
that guide normative practice.  Another formulation uses "top down" and
"bottom up" as metaphors.  Being antitheoretical is being against "top
down" construction of legal arguments that move from abstract and
general propositions to conclusions about particular cases.  The
alternative approach is "bottom up," starting with judgmetns about
particular cases and ending with "low level" principles that are more
concrete and contextual than abstract and general.

Ad Hoc Legal Pragmatism

So far, I’ve tried to get at what I think is the core coneptual
content of legal pragmatism–in its best and most intellectually
defensible forms.  But there is another version of "legal pragmatism"
that deserves some discussion.  Sometimes, the phrase "legal
pragmatism" is used in a very casual way as a kind of evasion or escape
from serious objections.  For example, someone might make a series of
normative arguments that rest on inconsistent theoretical
premises–affirming some form of consequentialism at one point and then
relying on strong deontological premises at another.  When confronted
with inconsistency, they might say, "Oh, I’m a pragmatist."  And they
might be, but "pragmatism" is not a "Get Out of Jail Free" card that
somehow magically nullifies contraditions or reconciles theoretical
contraditions.  The best uses of legal pragmatism always ground
specific pragmatic moves in some metatheoretical framework.

There is no official name for "sloppy pragmatistm," but I use the
label "ad hoc pragmatism" as a short-hand label for the attempt to use
"pragmatism" as an excuse for theoretical inconsistency or for gaps in
a theoretical argument.  "Pragmatism" should be the term we use to
describe a family of metatheoretical arguments; it is not an excuse for
avoiding such arguments.

Conclusion 

"Pragmatism" is tricky.  In philosophy, the term "pragmatism" is
both vague and ambiguous referring to a family of related but distinct
philosophical positions, some of which are inconsistent and most of
which are highly general and abstract.  Similarly "legal pragmatism" is
not really a single well-defined metatheoretical position, but is,
instead, a label that is applied to a number of different moves in
general legal theory.

References

Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2003)

Daniel Farber, Legal Pragmatism and the Constitution, 72 Minn. L. Rev. 1331 (1988).  Highly recommended as an exemplar of legal pragmatism.

Farber & Frickey, Practical Reason and the First Amendment, 34 UCLA L. REV. 1615, 1639-56 (1987).

Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 WAKE FOREST L. REV. 473, 497-507 (2003).

Richard A. Posner, Law, Pragmatism, and Democracy (2003).

(This post was last revised on December 28, 2008.)

Source: Lawrence Solum

Lisa Schultz Bressman (Vanderbilt University – School of Law) has posted Chevron’s Mistake (Duke Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Chevron U.S.A. Inc. v. Natural Resources Defense Council asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation – whether intentionalism, purposivism, or textualism – and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances – for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Chevron recognizes such delegating factors, it fails to sufficiently credit them. Even United States v. Mead Corp., which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies.

Source: Lawrence Solum