Education Moulds

Stephen I. Vladeck (American University Washington College of Law) has posted AEPDA, Saucier, and the Stronger Case for Rights-First Constitutional Adjudication (Seattle University Law Review, Vol. 32, p. 595, 2009) on SSRN. Here is the abstract:

As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was "unreasonable" based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did not act unreasonably without deciding whether it committed error, leaving the law unsettled — perhaps indefinitely.

In a comparable line of cases under the qualified immunity doctrine, the Supreme Court had, for a time, endorsed a rigid order-of-battle pursuant to which reviewing courts must reach the "rights" question first. Although the rule of Saucier v. Katz was abandoned earlier this Term in Pearson v. Callahan, this essay suggests that the so-called "Saucier sequence" might make even more sense in the context of post-conviction habeas petitions under AEDPA, a context in which Saucier's many shortcomings hold far less water.

Source: Lawrence Solum

Caitlin E. Borgmann (City University of New York (CUNY) - School of Law) has posted Holding Legislatures Constitutionally Accountable Through Facial Challenges (Hastings Constitutional Law Quarterly, Vol. 36, No. 4, 2009) on SSRN. Here is the abstract:

The Roberts Court has viewed facial challenges with skepticism and hostility. The Court issued one early decision suggesting that its primary concern with facial challenges was the breadth of the remedy. More recently, however, the Court has simply denied facial challenges outright without considering the possibility of more limited relief. In these cases, the Court has focused more on the pre-enforcement and broad-ranging nature of facial challenges, expressing a preference for concrete evidence that a law has harmed, or will harm, particular classes of individuals. While placing a heavy burden on plaintiffs to demonstrate actual or likely harm, the Court has often deferred to legislative factual assertions regarding the purposes that underlie rights-infringing laws, even where those purposes are quite likely pretextual. The Roberts Court’s intolerance for facial challenges thus does more than perpetuate the Court’s longstanding confusion over the standard by which to assess such challenges; it permits the Court to withdraw from its critical role in safeguarding individual rights. This Article argues that facial challenges and facial invalidations can help to promote constitutional accountability among legislatures. When a legislature defies clearly established constitutional requirements, or when a legislature’s fact-based justifications for a rights-infringing law crumble under independent examination, a legislature repudiates its duty to uphold the Constitution. That shortcoming infects the entire law; it is not limited to some subset of potential applications. It is the courts’ duty in such cases, not to reward or accommodate the legislature’s failure, but to protect individual rights from it. Complete invalidation of the law in such circumstances satisfies constitutional norms and vindicates the courts’ critical role in protecting individual rights from majority oppression.

Source: Lawrence Solum

Robert G. Schwemm (University of Kentucky - College of Law) has posted Strader v. Graham: Kentucky's Contribution to National Slavery Litigation the the Dred Scott Decision (Kentucky Law Journal, Vol. 97, No. 3, p. 353, 2008-2009) on SSRN. Here is the abstract:

In 1841, three Kentucky slaves in Louisville boarded a steamboat bound for Cincinnati. Within days, they had made their way to Detroit and then to permanent freedom in Canada. Their owner, a prominent central Kentucky businessman, soon tracked them down and tried to lure them back to bondage in the United States. When these efforts failed, he sued the steamboat owners for the value of the lost slaves in a Kentucky court.

After ten years of litigation, this case reached the U.S. Supreme Court. The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent a few years later when the Court considered the freedom claim of another slave, Dred Scott, whose case would produce perhaps the most important decision ever handed down by the U.S. Supreme Court.

The key issue in Dred Scott - how, if at all, a Negro slave could obtain his freedom by spending time on free soil - had also been considered by the Court in prior cases. This Article deals with one of these, Strader v. Graham, 51 U.S. 82 (1851), the case brought by the Kentucky businessman whose slaves escaped on the defendants’ steamboat and the only Kentucky slave case ever to reach the Supreme Court.

This Article provides a detailed description of Strader, including its factual background, its reflection of Kentucky slave law in the first half of the nineteenth century, and its significance for Dred Scott and other subsequent slave-related matters. Part I provides an overview of Kentucky slave law as it evolved up to the time of the Strader litigation. Part II describes Strader’s factual background and the Kentucky court decisions it produced. Part III covers the Strader case in the U.S. Supreme Court. Part IV deals with post-Strader events, including a review of the Dred Scott case and the role that the Strader decision played in that litigation. Part V provides some concluding observations about how the Strader case reflected the role of slavery, law, and lawyers in antebellum Kentucky and what Strader and Dred Scott might teach us in the modern era.

Source: Lawrence Solum

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The Constitutional Power to Interpret International Law (Yale Law Journal, 2009) on SSRN. Here is the abstract:

What is the force of international law as a matter of U.S. law? Who determines that force? This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determinate commands in conflict with the Constitution’s commands or assignments of power, international law is, precisely to that extent, unconstitutional. Further, the force of treaties (and executive agreements) to which the U.S. is a party is always subject to the constitutional powers of Congress and the President to supersede or override them as a matter of U.S. domestic law.

It follows from the Constitution’s allocation of power exclusively to U.S. constitutional actors that the power to interpret, apply, enforce – or disregard – international law, for the United States, is a U.S. constitutional power not properly subject to external direction and control. The power “to say what the law is,” including the power to determine the content and force of international law for the United States, is a power distributed and shared among the three branches of the U.S. government. It is not a power of international bodies or tribunals. This understanding of the relationship of international law to the U.S. Constitution’s allocation of powers in matters of war and foreign affairs has important implications for many contemporary issues the United States’s actions with respect to compliance with international treaties and other international law norms in the areas of criminal law enforcement, the conduct of war, war prisoner detention and interrogation practices, and the imposition of military punishment on unprivileged enemy combatants.

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Source: Lawrence Solum

Richard A. Epstein and Amanda M. Rose (University of Chicago - Law School and Vanderbilt University Law School) have posted The Regulation of Sovereign Wealth Funds: The Virtues of Going Slow (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

Any symposium on private-equity firms and the going private phenomenon would be incomplete without discussion of Sovereign Wealth Funds (SWFs). These government owned investment vehicles have and will continue to play an important role in the going private phenomenon. SWFs have not only helped fuel that phenomenon through their participation as limited partners in private-equity funds and hedge funds, but their massive capital infusions into ailing financial institutions and private-equity firms in the wake of the subprime mortgage crisis may, in a very real sense, save it. It is not hyperbolic to suggest that the future of private equity - including the going private phenomenon - and the future of SWFs are inescapably intertwined. Misguided regulation of the latter will, quite foreseeably, operate to the detriment of the former. And the scope of potential mischief is broad.

SWFs have existed for decades, but today they face heightened scrutiny due to their recent rapid growth and a concomitant shift in their investment strategy from primarily conservative debt instruments to higher risk/reward equity investments. This shift in strategy has stoked fears in the United States and Europe that these funds - which find home primarily in the Middle East and Asia - will use their economic clout to pursue political goals. This type of rhetoric has led some to call for increased regulation of SWFs.

In this Article we argue against imposing any additional burdens on investments by SWFs in the United States, at least at present. In our view, at this point a policy of watchful waiting is preferable to any immediate effort to impose special restrictions on SWFs. On the one hand, the nightmare scenarios painted by SWF critics often involve activities that would be caught by existing laws, either as they relate to national security or to various forms of business regulation under the securities and antitrust laws. On the other hand, we do not possess perfect foresight and cannot say that every possible permutation of SWF investment should escape a regulatory response in the future. What we do know, however, says that the burden of proof lies on those who think that further prophylactic regulation is in order at this juncture. To date, SWFs have acted as model investors, and the risk that they may act strategically in the future is significantly mitigated by existing safeguards. A far greater danger to America’s economy and security inheres in taking unnecessary action that would encourage SWFs to redirect their investments elsewhere, or to harbor resentment toward the United States that could express itself in a wide range of hostile actions.

Source: Lawrence Solum

Check out this thoughtful post by Tom Goldstein. Here is a taste:

So far, he has written 156 majority opinions for the Court. There isn’t the space here – or the time for reflection – to catalog them in order of importance or interest. But in constitutional law, his opinion for five Justices in McCreary County v. ACLU, 545 U.S. 844 (2005), stands at the knife’s edge of stating a controlling rule of law in Establishment Clause cases that may not survive the departure of Sandra Day O’Connor. His opinion in the right of speech and association in Hurley v. Irish-American, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), is among the most often cited in the field. For a time, he was a member of a majority to more broadly uphold campaign finance regulation, as reflected in his opinions in FEC v. Beaumont, 539 U.S. 146 (2003), FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001), and Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (1999). For a man with a somewhat distant relationship with technology, his opinion in MGM Studios v. Grokster, 545 U.S. 913 (2005), is surpassingly important to the future of copyright, and opinions like Verizon Comms. v. FCC, 535 U.S. 467 (2002), play a central role in telecommunications regulation. Others decided critical questions of procedure. The defense bar hopes that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), is a landmark ruling on the obligation to set forth detailed allegations in a complaint. Beyond his opinions, the Justice’s vote has often been essential, as when he played a central role in the troika in Planned Parenthood v. Casey, 505 U.S. 833 (1992), that upheld the core of Roe v. Wade.

Source: Lawrence Solum

George H. Taylor (University of Pittsburgh - School of Law) has posted Law and Creativity
(PHILOSOPHY AND AMERICAN LAW, Francis J. Mootz, III ed., Cambridge University Press, March 2009) on SSRN. Here is the abstract:

This chapter probes how philosophy may help us understand how legal creativity occurs. The inquiry is basically descriptive, but there is an underlying normative element also to the extent that the inquiry opens a space alternative to rule formalism and the recourse only to the past, both of which can often be stultifying for both the law and the legal profession.

The chapter relies principally on approaches in continental philosophy, particularly hermeneutics and the work of Paul Ricoeur on metaphor and imagination. It also adverts to recent work in cognitive theory that helps deepen the philosophical insights. While legal scholarship has debated the nature of legal creativity in the context of analogy, the claim is that the resources of hermeneutics allow a more precise, sophisticated, and illuminating rendering of this subject.

The potential reinterpretation of meaning required at the moment of application is a basic theme of hermeneutics. The relationship between meaning and application is not one of subsumption; meaning is not determined once and for all at the moment of origin but must be reassessed as the meaning is applied to new circumstances. Meaning can change as it is applied; the determination of meaning requires creative judgment.

Our understanding of the interrelation between meaning and application can be enriched by describing the interrelation as metaphoric. The ground for metaphoric predication arises when customary meaning is challenged. In metaphor, writes Ricoeur, “the similar is perceived despite difference.” Metaphoric predication is a creative act that can expand a category. In the interrelation of meaning and application, we may see resemblance where we had not before.

Analysis is extended a step further by considering how the interrelation of meaning and application in legal judgment is not simply metaphoric but imaginative. The creation of metaphoric resemblance is an act of imagination. The relationship between meaning and application is not one of deduction of the particular from the general principle but rather of a transfer of meaning. Making the transfer requires imagination. Philosophic analysis of metaphor and imagination allows us to ascertain how significant is the role of creative judgment in law.

Source: Lawrence Solum

Maya Manian (University of San Francisco School of Law) has posted Rights, Remedies and Facial Challenges (36 Hastings Constitutional Law Quarterly, Vol. 36, p. 611, 2009) on SSRN. Here is the abstract:

This brief comment extends upon a key point raised by Caitlin Borgmann’s article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann’s analysis, this comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This comment focuses on Gonzales v. Carhart as an illustration of the Roberts Courts’ manipulation of procedural rules regarding as-applied and facial challenges to cloak its overruling of substantive precedent. This comment also suggests that, given an environment of hostility towards facial challenges, civil rights litigants might better succeed in preserving constitutional rights by seeking narrower injunctive remedies against unconstitutional regulations rather than seeking total invalidation of such regulations.

Source: Lawrence Solum

Fiona de Londras (University College Dublin-School of Law) has posted Dualism, Domestic Courts, and the Rule of International Law on SSRN. Here is the abstract:

The concern in this article is with the role that domestic courts and judges can play in enforcing the rule of international law in dualist states. The underlying purpose of the article is to consider whether there is something inherently anti-internationalist about dualist legal systems: do domestic courts and judges in dualist systems shun international law in favour of domestic law and, if so, is that a product of the dualist legal system‘ The paper argues that in fact there is nothing about dualism per se that precludes reference to and reliance on international legal norms and undertakes a short cross-jurisdictional survey in an attempt to sketch out an emerging spectrum of internationalism across dualist states. The purpose is not to present a conclusive picture of the position of international law in every dualist state but rather to argue that dualism alone can not explain the varying degrees of internationalism we see among superior courts in dualist jurisdictions. Rather, as I argue in the final part of the paper, degrees of internationalism should be understood as matters of legal culture. I attempt, in the final section, to unpack some elements of legal culture that are likely to impact on internationalism and, by so doing, to identify areas of possible development for the purpose of increased internationalism

Source: Lawrence Solum

Mark Geistfeld (New York University - School of Law) has posted Efficiency, Fairness, and the Economic Analysis of Tort Law (THEORETICAL FOUNDATIONS OF LAW AND ECONOMICS, Mark D. White ed., Cambridge U. Press, 2009) on SSRN. Here is the abstract:

Throughout its history, the economic analysis of tort law has been largely limited to one question: How should tort rules be formulated so as to minimize the social cost of accidents? Throughout its history, the economic analysis of tort law has also been controversial. The two phenomena are related. It is highly controversial whether tort law should minimize accident costs to the exclusion of fairness concerns, which in turn has fostered the belief that the economic analysis of tort law is controversial.

The most forceful critique has come from those who maintain that tort liability is best justified by the principle of corrective justice. This principle is based on an individual right that imposes an obligation or duty on another individual. A duty-holder who violates the correlative right has committed a wrong, creating a duty to repair or correct any wrongful losses suffered by the right-holder. This rights-based principle of justice purportedly rules out the economic analysis of tort law.

Such sweeping claims about the irrelevancy of economic analysis must be understood in context. If the appropriate rationale for tort liability is a rights-based principle such as corrective justice, then the justification for a liability rule does not depend on whether it is allocatively efficient. Economic analysis is “ruled out” for being irrelevant to the rights-based justification for tort liability.

Allocative efficiency does not need to be the norm of tort liability in order to make economic analysis relevant. Economic analysis is not limited to issues of allocative efficiency and cost minimization. It is an open question whether a rights-based tort system would employ economic analysis, and if so, how.

To address this question, I specify the substantive content of an autonomy-based, individual right that is both allocatively inefficient and fully compatible with the relevant requirements of welfare economics. As I have argued at length elsewhere, such a right also provides a good description of tort law. Thus, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of justice is mistaken. I conclude by arguing that economic analysis is integral to any plausible rights-based tort system.

Source: Lawrence Solum