Minimalism and Deliberative Democracy: A Closer Look at the Virtues of “Shallowness”

Judicial minimalism is an account of how judges should, and sometimes do, decide the cases before them. Generally speaking, minimalist judges prefer to resolve difficult cases in a modest way. They favor narrow decisions, confined to the facts of the case; and they favor shallow decisions, avoiding any large account of the problem at hand and how it should be resolved. “Instead of adopting theories,” Cass Sunstein says, minimalist judges “decide cases.” The central claim of this Article is that minimalism does not “spur” or “promote” democracy, as Sunstein has long argued it does. Sunstein’s basic idea is that a court can promote democratic activity by using certain procedures or doctrines to issue minimalist decisions. For example, a court could use the non-delegation doctrine to require that a matter be addressed by legislation rather than simply by executive discretion. Requiring the legislature to address the matter promotes democratic activity. My argument is that minimalism does not promote democracy because minimalist decisions lack the depth necessary to promote democratic activity. Like Sunstein, I endorse a view of democracy that is based on deliberation. Democracy is, at its heart, a procedure for exercising state power based on reasoning between free and equal citizens. Minimalist decisions do not promote democratic deliberation because they fail to give those of a different viewpoint a reason to change their minds. Whereas minimalism advocates “shallow” decisions, changing minds often requires “deep” arguments

Bills of Attainder

What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills. This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of attainder are best understood as a summary form of legal process, rather than a legislative act. This argument is based on a detailed historical reconstruction of English and early American practices, beginning with a study of the medieval Parliament rolls, year books, and other late medieval English texts, and early modern parliamentary diaries and journals covering the attainders of Elizabeth Barton under Henry VIII and Thomas Wentworth, earl of Strafford, under Charles I. The Article then turns to America, where it illustrates the influence of English practices in revolutionary New York and Pennsylvania, drawing primarily on legislative records, correspondence, memoirs, and early histories. The Article then leverages this historical research to argue in favor of interpreting the Bill of Attainder Clause to apply to summary legal proceedings conducted by the Executive

Matthew Steilen, The Place of Norms in Separating Power

One of the chief intellectual discoveries of the past four years has been the degree to which government rests on norms: on a shared sense of the proper way to go about the business of government. This is unsurprising for followers of the law and society movement, with which the Baldy Center is so closely associated. From the beginning, scholars of law and society have demonstrated the limits of formalism in explaining how the law actually works. One can think of the Trump presidency as finally demonstrating for the wider world of legal scholars, the essential role of shared understandings, legal culture, accepted practice, informal conventions, and customs in our separation of powers. The judge-made doctrine has changed only at the margins, and its major holdings remain intact, but the real meaning of separation of powers has been altered dramatically

The Democratic Common Law

This article explores the democratic features of common-law judicial law-making. It begins by examining the so-called “classical” account of the common law, associated with English jurists Edward Coke and Matthew Hale. These jurists describe the common law as a kind of “reasonable custom” that emerges out of a public process in which lawyers exchange reasons with the court about how to resolve a dispute. The article then turns to modern common-law adjudication, and, drawing on the work of Fred Schauer, Edward Levi, Martin Golding, and others, shows how public deliberation prominently features in the modern adjudicative process as well. The core idea is that modern common-law adjudication requires the court to engage the arguments of the parties in determining how the law ought to apply to their case. This makes the court responsive to the concerns of those it governs. The article then draws a comparison between common-law adjudication, so described, and the legislative process. To do so, the article summarizes the key ideas behind the “deliberative” theory of democracy, which argues that democratic law is legitimate because it arises out of a collective process of public deliberation over the wisdom of a proposed policy. Legislation under the deliberative theory of democracy is similar to common-law adjudication, in that in both cases, legitimacy depends on a process of exchanging reasons about the appropriate collective course of action

Juan Donoso Cortés and Political Theology

The article offers a reconstruction of Donoso's idea of political theology by analyzing his main work, the 1851 Essay on Catholicism, Socialism, and Liberalism. Commentators have often confined the role of Donoso to a footnote in the literature on Carl Schmitt. To better appreciate his original thought, this article analyzes his account of the secularization of theological ideas. Donoso understands modern politics as a confrontation between the philosophies of socialism, liberalism, and Catholicism, which diverge on questions about the nature of man, of evil, and of society. Modern worldviews are thus read through simplified Catholic dogma. Donoso's vision of politics as secularized theology develops in dialogue with Pierre-Joseph Proudhon. The Donoso-Proudhon-Schmitt rapport allows a consideration of political theology in terms of metaphor and literary device. Within this larger story, Donoso represents the moment when a traditionalist figure of thought slowly detaches itself from its historical foundations

Due Process as Choice of Law: A Study in the History of a Judicial Doctrine

This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies. This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in the administration of government. The Article then reconstructs federal due process cases in the period from 1870 to 1915, arguing that the Supreme Court limited the use of summary procedures by testing their fit with the so-called public interest, or public right, ostensibly at issue. Finally, the article turns to the due process “revolution” and “counter-revolution,” showing how the traditional choice-of-law framework broke down, resulting in the Mathews decision

Reason, the Common Law, and the Living Constitution (review of The Living Constitution by David Strauss)

This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss argues it does. The review then offers an alternative account of the common law based on the “classical” common law theory associated with Coke, Hale, and Blackstone

On the Place of Judge-Made Law in a Government of Laws

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or the ruler, but the law of the community. This view may explain why the new American republican regimes elevated their judiciaries, insulating them from political control, while at the same time reforming judicial procedures and trimming traditional jurisdictions to exclude matters that invited judges to exercise an arbitrary discretion