Source: Lawrence Solum

Why do states provide migrants rights associated with citizenship? Existing accounts typically answer this question in terms of obligation – of a duty on the part of states to confer citizenship. Moreover, scholars tend to lump together the bundle of rights conventionally associated with citizenship when they answer this question. In contrast, this Article disaggregates the rights associated with citizenship, asks what both states and migrants want, and inquires into how the suite of rights associated with citizenship might advance those interests. States want to encourage migrants to enter their territory and to make country-specific investments, but have an interest in being able to remove immigrants or make their lives less comfortable if circumstances change. However, migrants will not enter and make country-specific investments if the state can easily remove them or change the conditions in which they live. Accordingly, the “optimal contract” reflects the trade-offs between commitment and flexibility. We discuss ways in which basic rights to liberty and property, political rights including voting, and other rights may embody the optimal contract in different circumstances.

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Reconstruction, America’s Second Founding, plays a remarkably small role in constitutional theory. This paper, prepared as part of a symposium aimed at addressing that neglect, discusses the serious interpretive problems posed by an attempt to work Reconstruction – and its aftermath – into the constitutional canon. These problems range from the paucity of extant materials to help understand the intentions of the ratifiers of the Fourteenth Amendment, to the lack of any place in constitutional theory for dealing with constitutional events amendments the country ratifies then effectively rejects. Problems such as these pose an almost insurmountable difficulty for originalists – but they don’t make life easy for other interpretive methodologies either. This paper bears upon the history of the Reconstruction Amendments, as well as interpretive theory.

A must read! But I am a bit confused by Friedman’s characterization of originalist methodology–which seems to almost completely ignore the move to public meaning.  Friedman seems to believe that contemporary originalists focus on something like the original understandings of the ratifiers–where such understandings are expectations about applications.  This position is certainly not the position of many prominent New Originalists and is not “original public meaning originalism.”

This paper seeks to argue that although fair trial standards are commonly portrayed as a set of minimum coherent standards applicable across a range of different legal traditions, there is a tension between those standards that accentuate the importance of individual will and autonomy and those that emphasise the importance of accurate outcome through an effective defence. This tension has been managed for the most part by enabling individuals to be represented by legal counsel who present the defence on the basis of their clients’ instructions. Human rights law has recognised the importance of legal assistance at trial and pre-trial stages of criminal procedures. Despite this certain developments in domestic and international criminal processes have led to a growing number of cases being decided without an effective defence being provided by legal counsel. Such cases have been disposed on the basis of defendants’ ‘consent’ and this supposed autonomy has held sway over any effective defence.

The paper begins by tracing different dimensions of the fair trial standards and exposes a tension between the need for defendants to exercise autonomy over their case and the need for an effective defence. The paper then argues that the right to counsel has acted as a bridge between these two competing demands. Recent developments are then reviewed which have served to impede counsel from providing an effective defence in the interests of the client’s freedom to choose how her case should be handled. The examples examined are the growing number of cases that are pleaded or diverted out of court with no real examination of the strength of the prosecution case, the emergence of special advocates who do not take instructions from defendants and the increasing tendency for defendants to represent themselves in certain types of cases. The paper concludes by arguing that we need to make a sharper distinction between individual rights and procedural standards and argues for greater attention to be given to the latter on the design of criminal procedure.

Source: Lawrence Solum

The United States is generally proud of its leadership role at the Nuremberg trials, making America’s current rejection of the precedent they established seem paradoxical. This article approaches the “Nuremberg Paradox” by examining the French experience with the Nuremberg trials, and comparing France’s adoption and internalization of international criminal law to that of its American cousin. The Article concludes that an important reason that the Nuremberg principles never took root in the United States stems from the different legal cultures and traditions of the two countries, particularly as regards the field of international criminal law. Examining the inter-war, post war and modern application of international criminal law in France and the United States, one is struck by the long-standing legal, philosophical and political differences exhibited by the two countries’ approaches, and perhaps most starkly, the differences that appeared during the negotiation, adoption and ratification of the International Criminal Court Statute in 1998. Indeed, although the French Parliament was willing to ratify the ICC Statute and at the same time adopt a constitutional amendment abrogating the immunities and future amnesties granted to its own members and the President of the French Republic, U.S. opposition to the treaty has been consistent and, at times, overwhelming. In exploring these questions, the article surveys the interwar scholarship, the post-world war II prosecutions of Vichy collaborators and former Nazis in the Touvier, Barbie, and Papon cases, and France’s more recent exercises of universal jurisdiction in the modern period of international criminal law. The implications of the French experience are analyzed in light of Harold Koh’s transnational legal process theory, which captures the process by which France internalized the Nuremberg principles, but does not explain why that process took hold in France but not in the United States. The Article’s central claim is that deeper historical, cultural and social factors that influenced French legal culture explain the differences between the two countries approaches. Indeed, an examination of the French precedent illuminates our understanding of how and why international criminal law remains only superficially and sporadically enforceable in the United States.

Source: Lawrence Solum

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called “incorporation.”

The inquiry proceeds in six parts. Part I answers the questions: “What is incorporation?” and “What is originalism?” Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that “original meaning” is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase “privileges or immunities” was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the “privileges or immunities clause” instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

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This article defends an interpretive approach that we call “original methods originalism.” Under this approach, the Constitution should be interpreted using the interpretive methods that the constitutional enactors would have deemed applicable to it. Thus, many of the key questions that arise about constitutional interpretation – such as whether intent or text should be its focus and whether words should be understood statically or dynamically – are answered based on the content of the interpretive rules in place at the time of enactment.

Original methods originalism provides the best way of determining the actual original meaning of the Constitution. The two leading approaches to determining the original meaning are original intent and original public meaning. We show, however, that the correct application of both of these approaches requires that they follow the original interpretive rules. Thus, both original intent and original public meaning lead to original methods originalism. While the original methods approach requires that the Constitution be interpreted in accordance with the original interpretative rules, the rules at the time could conceivably have required that the Constitution be interpreted as a living document. But we provide strong evidence that these interpretive rules were essentially originalist as that term is conventionally understood.

As well as focusing on the positive aspects of the original methods approach – its semantic account of the Constitution’s meaning – we also show that original methods originalism is normatively attractive. Enacting a constitution through a strict supermajoritarian process, like the one that was used in the United States, is likely to produce a beneficial constitution. But for the constitution to have this desirable quality, it must be given the meaning on which its enactors voted. That meaning requires reference to the interpretive rules existing at the time.

The original methods approach contrasts with current theories of constitutional construction. The “constructionist originalist” believes that original meaning controls the interpretation of provisions that are not ambiguous or vague, but that constitutional construction provides judges and other political actors with discretion to resolve ambiguities and vague terms based on extraconstitutional considerations. We find no support for constitutional construction, as opposed to constitutional interpretation, at the time of the Framing. The enactors would have expected such matters to be interpreted based on the original interpretive rules, but constitutional constructionists substitute extraconstitutional resolutions for those passed through the supermajoritarian process. Constitutional construction also exacerbates agency costs, because it allows interpreters to employ discretion rather than requiring them to follow the guidance furnished by the original constitution-making process.

Highly recommended.

Source: Lawrence Solum

In most modern legal systems, legal rules are widely understood as defeasible, in the sense that the prescriptions of the legal rule may legitimately be overridden or otherwise cancelled when those prescriptions appear to generate substantially erroneous results. As a result, it is common for commentators, including H.L.A. Hart and Richard Posner, to treat the defeasibility of legal rules as an essential feature of rules or an essential feature of law. But defeasibility is in important ways in tension with the goals of the rule of law, and so although there may be good reasons for a legal system to treat some or all of its rules as defeasible, there are also good reasons for refusing to do so. And so long as this is the case, it is a mistake to treat legal defeasibility as essential to law, for doing so both makes a mistake about the nature of law and deprives institutional designers of the advantages that may sometimes come from non-defeasible rules.

Recommended!

Source: Lawrence Solum

For over a century now, American scholars (among others) have been debating the merits of “bad-samaritan” laws – laws punishing people for failing to attempt “easy rescues.” Unfortunately, the opponents of bad-samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states even have bad-samaritan laws, and these laws impose only the most minimal punishment – either sub-$500 fines or short-term imprisonment.

This Article argues that this situation needs to be remedied. Every state should criminalize bad samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” – i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad samaritans.

Still, many objections have been leveled against bad-samaritan laws. This Article will argue that while some of these objections – namely, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation – are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad-samaritan laws and conclude that while bad samaritanism should indeed be criminalized, the punishment that convicted bad samaritans receive should be mild – certainly milder than the level of punishment recommended by the “proportionality” principle. The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle.

Source: Lawrence Solum

Public "reason giving" is an essential duty of democracies, said to promote better public decision-making by keeping the government's discretionary powers in check. However, this aim may be compromised if decision-makers cite insincere and misleading justifications as a means of preventing accountability. This Article contributes to rethinking sincerity in legal decision-making by asking both a normative and a descriptive question. The normative question is whether and to what extent should public institutions disclose the reasons for their decisions. The practical question is whether and how the fact that decision-makers have failed to fully disclose their reasons can be established.

The generally accepted and most demanding position, which I call "internalist sincerity," is that state actors should candidly reveal all the considerations that motivated them in making a decision. I argue that this conventional view is mistaken and propose instead a novel approach, "externalist sincerity," which requires only that public officials state reasons for their decisions which they believe justify the outcome, even if those reasons where not the considerations that actually motivated them. My approach revisits sincerity by way of introducing an institutional analysis, which has been largely overlooked in existing discussions. The Article claims that what we demand from institutions is a form of sincerity that is different from what we expect from individuals. When analyzing sincerity in an institutional context, our expectations matter more than the supposed intentions of institutions, particularly in cases in which there are multiple decision-makers such that there is no such thing as "the institution's state of mind."

The conceptual roadmap generated by this new look at sincerity in the law is important for two reasons. First, by clarifying what we mean when we say that public officials should be sincere about their reasons, this Article explains why disagreements on the topic often run deep, and reorients debate around more productive questions such as how to produce more pragmatic and nuanced sincerity requirements appropriate for different decision-making contexts. Second, it surveys existing models to determine whether they offer a consistent set of answers concerning the contents and contours of the duty to give sincere reasons, if indeed such a duty exists at all.

Very interesting & highly recommended.  My first impression is that the focus on "externalist sincerity" and the difference between institutions, individuals in institutional roles, and individuals speaking for themselves is very helpful.  This is a deep and important problem and this paper makes a significant contribution.

Source: Lawrence Solum