Metatheory

Constitutional theory has been challenged in recent years, by significant figures in the legal field, as essentially pointless. Too much normativity, not enough neutrality; too much conjecture, not enough data; too much politics, not enough truth. How should we constitutional theorists answer this basic challenge to the foundation of our research program? I suggest one possible solution here: we can make the discipline more rigorous by changing the way in which we assess competing claims in constitutional theory. Drawing on important work in epistemology, the philosophy of science, and legal theory, I examine the question of theory assessment and selection. I propose a set of criteria for constitutional theory selection consistent with the most cutting edge work in these fields and explain how we can use these criteria—simplicity, consilience, conservatism, and fruitfulness—and demonstrate how they operate to make theory assessment more sophisticated by applying them to two distinct sets of competing theoretical claims. Along the way, I discuss perennial debates like the controversy between those who claim that adjudication should be conducted with reference to legal reasons only and those who claim that courts may consider extra-legal reasons, including moral reasons, to decide cases. I then turn to examine a much more recent debate about the nature of certain doctrinal structures in constitutional adjudication. I argue, in the end, that more nuanced theory assessment techniques will advance constitutional theory in a manner that simultaneously answers foundational challenges and makes the research program more likely to produce testable, provable claims about the nature of constitutionalism going forward

Local Energy

At a point in the future that is no longer remote, renewable energy will be a necessity. The construction of large renewable energy farms is central to a transition away from fossil fuels, but distributed renewable energy technologies—wind turbines in backyards and solar panels on roofs—are immediately essential as well. Widespread deployment of distributed renewable technologies requires rapid innovation led by renewable energy pioneers—individuals who act as market leaders and prove to their neighbors that these new energy devices are safe and worthy of use. Existing law and the very structure of governmental authority over energy is ill-suited to this energy transition and stifles the efforts of these pioneers. Public bodies must therefore embark upon a substantial overhaul of what we call land-energy rules—legal requirements governing the construction and physical location of renewable technology. This Article assesses the relative institutional capacities of different levels of government to determine which will best ensure that land-energy rules enable a drive toward distributed renewable energy and concludes that the powers of municipal governments must be unleashed. Innovation will occur from the ground up, and municipalities must actively work to enable the next great energy transition in this country: a move toward energy produced from the sun, the wind, the earth’s internal heat, and other renewable sources