Beyond the Model Rules: The Place of Examples in Legal Ethics

The Model Rules of Professional Conduct defined the agenda for the post- Watergate renaissance in legal ethics. While there had been some form of codified precepts for American lawyers since at least 1908, Watergate inspired a desire to clean up a disgraced profession. The American Bar Association (ABA) promulgated the Model Rules; law schools instituted mandatory courses; and scholars debated and analyzed the new Model Rules. The organized bar devoted much time and attention to developing these guidelines. The mainstream media covered both the bar\u27s original efforts and the subsequent adoption of the Model Rules by particular jurisdictions. Today, forty-three American jurisdictions have adopted ethics guidelines based closely on the Model Rules

Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation

The usefulness of legislative history has been brought into question concerning how judges interpret the intent of legislation. The structure of the legislative process is examined in order to identify how legislators solve the problem of instability of majority rule

Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation

The usefulness of legislative history has been brought into question concerning how judges interpret the intent of legislation. The structure of the legislative process is examined in order to identify how legislators solve the problem of instability of majority rule

Irrelevant Cultural Influences on Belief

Recent work in psychology on ‘cultural cognition’ suggests that our cultural background drives our attitudes towards a range of politically contentious issues in science such as global warming. This work is part of a more general attempt to investigate the ways in which our wants, wishes and desires impact on our assessments of information, events and theories. Put crudely, the idea is that we conform our assessments of the evidence for and against scientific theories with clear political relevance to our pre-existing political beliefs and convictions. In this paper I explore the epistemological consequences of cultural cognition. What does it mean for the rationality of our beliefs about issues such as global warming? I argue for an unsettling conclusion. Not only are those on the ‘political right’ who reject the scientific consensus on issues like global warming unjustified in doing so, some of those on the ‘political left’ who accept the consensus are also unjustified in doing so. I finish by addressing the practical implications of my conclusions

Political strategies of external support for democratization

Political strategies of external support to democratization are contrasted and critically examined in respect of the United States and European Union. The analysis begins by defining its terms of reference and addresses the question of what it means to have a strategy. The account briefly notes the goals lying behind democratization support and their relationship with the wider foreign policy process, before considering what a successful strategy would look like and how that relates to the selection of candidates. The literature's attempts to identify strategy and its recommendations for better strategies are compared and assessed. Overall, the article argues that the question of political strategies of external support for democratization raises several distinct but related issues including the who?, what?, why?, and how? On one level, strategic choices can be expected to echo the comparative advantage of the "supporter." On a different level, the strategies cannot be divorced from the larger foreign policy framework. While it is correct to say that any sound strategy for support should be grounded in a theoretical understanding of democratization, the literature on strategies reveals something even more fundamental: divergent views about the nature of politics itself. The recommendations there certainly pinpoint weaknesses in the actual strategies of the United States and Europe but they have their own limitations too. In particular, in a world of increasing multi-level governance strategies for supporting democratization should go beyond preoccupation with just an "outside-in" approach

Albert Einstein, Esq.

Albert Einstein’s 1905 paper setting forth the special theory of relativity is one of the most famous scientific articles ever written. Peter Galison’s influential book, Einstein’s Clocks, Poincaré’s Maps: Empires of Time (2003), demonstrates that Einstein’s paper was fundamentally shaped by his work as a patent examiner by showing that arguments previously seen as abstract thought experiments were instead derived from Einstein’s work on patent applications for devices that coordinate clocks. Moving beyond Galison’s insights, we can see portions of Einstein’s paper as reflecting the quasi-judicial role of a patent examiner. Like trial judges, patent examiners must apply settled legal principles to new factual settings. A close look at the structure of the 1905 paper shows a similar effort to apply settled physical principles to an open problem. Einstein’s own writings show how he appreciated the analysis of “concrete cases” found in legal materials

Historical Gloss, Madisonian Liquidation, and the Originalism Debate

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such post-Founding governmental practice in discerning the Constitution’s separation of powers. That approach has been referred to as the “historical gloss” method of constitutional interpretation, based on language that Justice Frankfurter used to describe the concept in his concurrence in the Youngstown steel seizure case. Some originalist commentators, however, have advanced a potentially competing approach to crediting post-Founding practice, which they refer to as “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation. To date, there has not been any systematic effort to compare gloss and liquidation, even though the differences between them bear on the constitutionality of a range of governmental practices relating to both domestic and foreign affairs in the fields of constitutional law and federal courts. This Article fills that gap in the literature. We first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued inter-branch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar’s account of liquidation is properly attributed to Madison