Education Moulds

Steven G. Gey (Florida State University – College of Law) has posted The First Amendment and the Dissemination of Socially Worthless Untruths (Florida State University Law Review, Vol. 36, No. 1, 2008) on SSRN. Here is the abstract:

In contrast to other countries, in the United States the nearly absolute protection of political speech under the First Amendment prevents the government from imposing similar punishments on Holocaust deniers. Recognizing the fact that First Amendment doctrine leads to this result is uncontroversial; discerning the reason why the First Amendment doctrine leads to this result is much more problematic. The problem is that the usual explanations for why the First Amendment protects the expression of radical ideas do not easily explain why the First Amendment should protect the public assertion of facts that are both socially worthless (or worse – socially harmful) and demonstrably untrue. I will suggest in this Article that the source of this problem is our persistent reliance on an individual-rights conception of the First Amendment. I will also suggest that it is easier to explain the First Amendment’s protection of speakers who disseminate socially worthless untruths with an appeal to the structural function of the First Amendment within a broader concept of constitutional democracy. Under this conception, the First Amendment is not, in the end, primarily about protecting the individual’s right to speak; rather, the First Amendment is primarily about constraining the collective authority of temporary political majorities to exercise their power by determining for everyone what is true and false, as well as what is right and wrong.

Source: Lawrence Solum

Alexander Tsesis (Loyola University of Chicago – School of Law) has posted Dignity and Speech: The Regulation of Hate Speech in a Democracy (Wake Forest Law Review, Vol. 44, 2009) on SSRN. Here is the abstract:

The American tradition of free individual expression exists side-by-side with its Fourteenth Amendment commitment to equality. In the area of hate speech, the libertarian notion of free expression comes into tension with the aspiration of equal dignity. While it is evident that maintaining equality means that government has no power to treat the speech of similarly situated persons differently, potential interpersonal friction exists where the speech of one person threatens the rights or safety of another. With the expansion of the Internet, new regulatory challenges more frequently arise because of the global reach of hate propaganda transmitted from the United States, where it is legal, and streamed into countries, like France, where such communications are criminal offenses.

The global reach of supremacist ideology creates a challenge to world democracies. Societies committed to pluralism are obligated to safeguard individual expression while promoting egalitarian principles against harming others' safety and dignity. Consequently, as much as American society extols freedom of speech, there are many instances in which competing interests, such as retaining a good reputation in one's community, place restraints on public communications. Where one person wishes to express false statements about another, defamation law sides not with the desire for inaccurate catharsis but with the protection of reputation. The preference for an "individual's right to the protection of his own good name 'reflects no more than our basic concept of the essential dignity and worth of every human being.'" Public policy favors the interest of libeled individuals over that of anyone wishing to intentionally or negligently spread fallacy. So too where words are likely to result in the immediate breach of the peace. The Supreme Court has found that the government has a countervailing social interest in order and morality that justifies some limitations on speech.

This Article opens with an analysis of hate speech in a democratic society. The first topic to investigate is the role of speech in our constitutional democracy. The current Supreme Court cases that affect the status of hate speech are then reviewed and critiqued. Finally, the Article contrasts the American approach to destructive messages with the European and Canadian models.

Source: Lawrence Solum

Donald A. Dripps (University of San Diego – School of Law) has posted Recreational Drug Regulation: A Plea for Responsibility (Utah Law Review, Vol. 2009, No. 1, 2009) on SSRN. Here is the abstract:

That tedious yet terrible phrase, "the war on drugs," perfectly captures at least one truth. U.S. public policy has characterized substances, rather than persons, as the problem. This essay, contributed to a symposium held at the University of Utah S.J. Quinney College of Law, explains the implicit conflict between the premises of prohibition and the criminal law's presumption of responsibility. We then explore how indifference to responsibility has distorted the debate about prohibition. Leaving people out of the equation has led us to miscount both the costs and benefits of drug use, and the costs and benefits of prohibition.

The focus on substances that are said to cause harm, we have managed to exclude consumer welfare from our calculations of costs and benefits. We have managed to count as harms breaches of duty and even failures of potential that by themselves would never be thought by anyone to justify criminal prosecution. The focus on drugs, finally, has misled us into measuring the success of our current policy by the size of marginal changes in consumption. Marginal users, however, inflict only a small fraction of the harms inflicted by users.

My argument is methodological rather than programmatic. It works quite explicitly within the pragmatic tradition of American legislation. So, although indebted to those who have pointed out the tension between drug prohibition based on soft-paternalism and the denial of any drug-based criminal-law excuse, my argument goes very much further. My claim is not that certain defenses of prohibition cannot peacefully coexist with certain reasons for rejecting an addiction defense. Rather, I assert that in the cost-benefit calculations we have been making, we have been thinking like accountants rather than like economists, and thereby acting on distorted assessments of costs and benefits.

My methodological claim does not necessarily point in one direction or another on the legalization issue, although it does cast grave doubt on the present policy of de jure prohibition selectively enforced. If dragooned into the programmatic debate, I would argue for experience with different approaches before we can discount the risk that modifying prohibition will result in a catastrophic epidemic. I find that risk unlikely but not preposterous. We should start with baby steps, like decriminalizing marijuana grown and consumed in the privacy of the home by consenting adults, in a couple of states with large urban populations. At the same time, we should experiment with some expansions of coercive social intervention, such as linking driver's licenses for teenagers to drug-testing, or a government undertaking to administer drug tests at no charge upon parental request. If experience shows that a discriminating focus on users can limit social harm at less cost than prohibition, we would have a warrant for undertaking similar experiments with heroin, cocaine, and methamphetamine.

Above all, my argument suggests very, very limited expectations for public policy. No policy can guarantee long and happy lives to citizens who make self-destructive choices. No policy can avoid some degree of coercive social control over choices about drug use. At present we are using an extreme measure of coercion to achieve distinctly little in the way of public health and safety. If we view our challenge as improving on that, we will have realistic grounds for optimism.

Highly recommended.

Source: Lawrence Solum

Ariela J. Gross (University of Southern California Law School) has posted Legal Transplants: Slavery and the Civil Law in Louisiana on SSRN. Here is the abstract:

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction “transplanted” in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a “Black Code,” first adopted in 1806, which owed a great deal to both French and Spanish law. Comparisons of Louisiana with other slave states tend to emphasize the uniqueness of New Orleans’ three-tier caste system, with a significant population of gens de couleur libre (free people of color), and the ameliorative influence of Spanish law. This reflects more general assumptions about comparative race and slavery in the Americas, based on the work of Frank Tannenbaum and other historians of an earlier generation, who drew sharp contrasts between slavery in British and Spanish America. How does the comparison shift if we turn our attention away from slave codes, where Tannenbaum focused, to the “law in action”? At the local level, one can see the way slaves took advantage of the gap between rules and enforcement, and to fathom racial meanings at the level of day-to-day interactions rather than comparisions of formal rules. This essay surveys three areas of law involving slaves – manumission, racial identity, and “redhibition” (breach of warranty) – to compare Louisiana to other jurisdictions, and particularly to its common-law neighbors.

Source: Lawrence Solum

Jacob T. Levy (McGill University – Department of Political Science) has posted Multicultural Manners on SSRN. Here is the abstract:

The political theory literature on multiculturalism is dominated by approaches based on rights and recognition — quintessentially 17th- and 19th-century concepts, respectively. In this paper I aim to complement those approaches with one drawing on the 18th-century concept of manners. A range of cases of cultural contact and conflict — especially those in the up-close settings of city life, and especially those having to do with contrasting cultural norms about seeing and being seen — do not admit of wholly satisfactory resolutions in which every morally legitimate claim can be met at the same time. The paper surveys such cases, and explains what the concepts of manners and civility can bring to bear on their analysis.

Very interesting.

Source: Lawrence Solum

Lea S. Vandervelde (University of Iowa – College of Law) has posted The Labor Vision of the Thirteenth Amendment (University of Pennsylvannia Law Review, Vol. 138, No. 437, pp. 1989-1990, 2009) on SSRN. Here is the abstract:

The conventional understanding of the Thirteenth amendment is that it abolished the particular antebellum southern institution that subjugated black persons as slaves. Yet, the congressional debates reveal a much more expansive vision of labor reform. This theme has largely been lost in modern interpretation. Historical events rarely result from a single cause, and a single idea rarely drives legislative action. Nonetheless, beside the more religious abolitionist arguments, one finds numerous speakers who focused on labor conditions. Consequently, this Article aims to recapture the strong pro-labor theme that runs consistently through the debates.

As a whole, the Reconstruction debates reflect a desire to improve all workers' status by recognizing the dignity of labor, guaranteeing workers a wide range of opportunities for advancement, and raising the floor of legal rights accorded all working men. The pattern of discourse in the debates reveal a structure formed by three types of statements. The first addresses the historical need to rid employment relations of the master's patriarchal dominion over all laborers in his household and to accord the employee a realm of family and personal privacy free from employer control. The second describes the core concept of autonomy for laborers in their social and economic relations with employers. The final group targets certain specific labor practices as inconsistent with the spirit of labor autonomy. This three part configuration is useful in exploring the amendment's reach in restructuring baseline rights in the modem employment relation. The Reconstruction debates constitute an important resource because they record the original attempt to mandate constitutionally a minimum level of worker protection.

The debates follow an interesting dialectical pattern. In order to respond to the criticisms of slavery's advocates, the Radical Republicans had to create both a positive vision as well as the negative condemnation of slavery. The free labor ideal provided its affirmative side. The free labor ideal grew out of the Republican Party's origins in the Free Soil, Free Labor Movement as well as the self-interest of the northern white working class. Together, they present a powerful argument for constitutionally grounding the protection of working people from overreaching subjugation and abuses at the hands of employers.

The evidence suggests that the thirteenth amendment was animated by a conception of labor reform broader than the elimination of racial servitude which was its catalyst. From this perspective, race slavery was objectionable not only for its pernicious racism, but also as the most obvious and brutal violation of the free labor principle. Senator Henry Wilson’s remarks typify this perspective when he explained the party’s motivation as concern for the condition of the "worst off working man," rather than merely his formal legal reclassification.

This free labor vision has potentially far-reaching implications for constitutional interpretation of the thirteenth amendment and for many aspects of the modern employment relation.

Recommended.

Source: Lawrence Solum

Frederick Schauer (University of Virginia School of Law) has posted Balancing, Subsumption and the Constraining Role of Legal Text on SSRN. Here is the abstract:

Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy’s defense of proportionality and balancing against charges by Jurgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and the process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making.

Highly recommended!

Source: Lawrence Solum

Dr. Sean Wilson, Esq. (Wright State University) has posted The Fallacy of Originalism: What Philosophy of Language and Law Says About 'Original Meanings' on SSRN. Here is the abstract:

The resurgence of the new "originalism" among conservative American law professors is an intellectual movement that fundamentally misunderstands philosophy of language and law. The central problem is that most constitutional words are what Wittgenstein called "family resemblance ideas." This means that they consist only of a cluster of ideas that can be carried forth or implemented in numerous ways and formats. For example, what "cruel punishment" means linguistically are those choices, X, selected from an array of options, any combination of which bears a family resemblance to each other, had they been X. When generations make these choices to assemble their cruel-punishment "products," they are making "protocol choices." The central mistake of the new originalism is that it equates the protocol choices made by the framing generation with the meaning of the words in the constitution that necessitated the protocol election in the first place. This is a language fallacy. The meaning of language is always its use within the language culture, not the election of its cluster protocol. Hence, all that the framing generation ever gives us by way of their specific policy choices are illustrations of constitutional ideas. They do not give us the meaning of those words. Therefore, any generation that implements a legal rule containing a family-resemblance idea can only provide subsequent generations with suggestive guidance on how to carry out the rule. The new generation is always free to construct its own family protocol, so long as what it chooses belongs linguistically to the word's family-resemblance. What this means is that more than one culture across time can follow the same law differently, with each being obedient to its "original meaning." Also, unless law specifically says so, it never enacts any generation's cultural protocol. This is because the purpose of law is to regulate culture, not to sanctify it. Hence, culture is free to evolve and create new protocol that does not violate the grammar of the constitution.

Wilson's central new idea–that some (or has he claims "most") or the operative words and phrases in the constitution are "family resemblence" concepts–is intriguing, intellectually important, and bound to be controversial. I'll have much more to say about this paper on some future occasion. For now, I would like to call attention to this claim:

The new generation is always free to construct its own family protocol, so long as what it chooses belongs linguistically to the word's family-resemblance.

This claim is potentially consistent with the two claims that constitute the core of "the New Originalism" or "original public meaning originalism": (1) the fixation thesis: in this case, that belonging linguistically to the set of family relationships that are authorized by linguistic practice is fixed by usage at the time of constitutional utterance, and (2) the contribution thesis: these limits on semantic meaning contribute to constitutional doctrine (characteristically by acting as a constrain on legally correct interpretations).   Of course, Wilson may well deny the fixation thesis–holding that any extension of a family resemblance concept can be correct so long as each move in the chain of extensions is itself warranted: I am inclined to deny that this is the case, but much more needs to be said.

Wilson's move, if correct, would provide the argumentative materials out of which a reconciliation of originalism and living constitutionalism could be constructed (for those provisions that employ family resemblence concepts).

I need much more time to assess the merits of this paper, but I will certainly be reading it carefully.  Recommended.

Source: Lawrence Solum

John Oberdiek (Rutgers University School of Law, Camden) has posted two related papers on SSRN:

What's Wrong with Infringements (Insofar as Infringements are Not Wrong)?: A Reply (Law and Philosophy, Vol. 27, No. 3, 2008):

An earlier article of mine, 'Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights', was devoted to rebutting Judith Jarvis Thomson's arguments in favor of incorporating the distinction between (permissibly) infringing and (impermissibly) violating a right. In 'A Defence of Infringement', Andrew Botterell maintains that my criticisms and attempted rebuttals of Thomson's position fail, and that despite my efforts to show otherwise, the category of right infringements is secure. In this reply, I explain why I demur.

And:

Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights (Law and Philosophy , Vol. 23, No. 4, 2004):

The infringing/violating distinction, first drawn by Judith Jarvis Thomson, is central to much contemporary rights theory. According to Thomson, conduct that is in some sense opposed to a right infringes it, while conduct that is also wrong violates the right. This distinction finds a home what I call, borrowing Robert Nozick's parlance, a "moral space" conception of rights, for the infringing/violating distinction presupposes that, as Nozick puts it, "a line (or hyper-plane) circumscribes an area in moral space around an individual." In this paper, I argue against the moral space conception of rights, and more specifically, against incorporating the infringing/violating distinction into a theory of rights. There are other compelling ways to think about rights and it is my goal to stimulate their exploration.

Both papers are highly recommended!

Source: Lawrence Solum

On Sunday, I put up a short post noting Richard Chappell's comments on Bronsteen, Buccafusco, and Masur's Welfare as Happiness.  Bronsteen has now commented on Chappell's post, with a further reply by Chappell (just scroll down).  One of the points of disagreement concerns the question whether persons do care about objective well-being for reasons other than the subjective experiences that may (or may not) result.  Here is a brief taste of Chappell:

Source: Lawrence Solum