The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection

A core insight of the legal realists was that many disputes are indeterminate. For example, in many appellate adjudications, respectable legal arguments can be made for both sides of the dispute. A contemporary reaction to the realist insight by critical legal scholars is expressed in the slogan Law is politics. This critical slogan might be elaborated as follows: in openly political activities, such as the legislative process or partisan elections, debate centers on issues of value and social vision that are outside the scope of legal reasoning. Judicial opinions merely dress up political decisions in the garb of legal reasoning. The realist insight and critical reaction challenge conventional notions about the selection of appellate judges on the basis of merit-a combination of legal expertise and judicial temperament. If appellate judges really render decisions on the basis of politics, then why should judges be selected (or elected) on the basis of merit? In his essay, Judging in a Corner of the Law, Professor Schauer has gone so far as to suggest that appellate judges need not be lawyers and certainly need not be experienced or excellent lawyers. Moreover, Schauer maintains, the skills and knowledge desirable in appellate judges are not even taught in law schools

Faith and Justice

What is the relationship between faith and justice? In particular, this Article will address the question of what a Justice of the United States Supreme Court should do, when her religious faith suggests that a case should be resolved in a way that is either inconsistent with the law or not justified by nonreligious, public reasons. May she rely on her religious beliefs to resolve a hard case? May she write an opinion that uses religious grounds to justify her decision? In this Article, I will undertake to elaborate and defend a distinctively liberal position concerning faith and justice. My thesis is that respect for the diversity of faiths requires that judicial decisions not be made or justified on the basis of religious faith. Rather, judicial decisions should be made and justified by public reasons that could be accepted by individuals from a diversity of faiths or no faith at all. Part I of this Article outlines some critical perspectives on the relationship between faith and justice. The liberal conception of constitutional order seems to rely on questionable assumptions about the nature of public and private, sameness and difference, and the right and the good. These assumptions have been subjected to a sustained examination from the perspectives of critical legal studies, feminist jurisprudence, and critical race theory. Part II seeks to develop a liberal theory of the relationship between faith and justice that is responsive to this critique. The liberal case for excluding religious faith or any other comprehensive conception of the good from the process of judging rests on the idea that political justification in general, and legal argumentation in particular, should attempt to forge and sustain an overlapping consensus on a public conception of justice. Part III applies this liberal conception of the relationship between faith and justice to issues raised by Catholics becoming Justices. Finally, Part IV presents my concluding thoughts on the relationship between faith and justice

Communicative Content and Legal Content

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between communicative content (the linguistic meaning communicated by a legal text in context) and legal content (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules

The Value of Dissent

This essay reviews Dissent, Injustice, and the Meanings of America by Steven H. Shiffrin (1999). Theorizing about the freedom of speech has been a central enterprise of contemporary legal scholarship. The important contributions to the debate are simply far too numerous to categorize. One ambition of this theorizing is the production of a comprehensive theory of the freedom of expression, a set of consistent normative principles that would explain and justify First Amendment doctrine. Despite an outpouring of scholarly effort, the consensus is that free speech theory has failed to realize this imperial ambition. Rather than searching for the global theory of the First Amendment, constitutional scholars are content to aim for a local theory; offering partial conceptualizations, local theories explain, justify, or critique some portion of free speech doctrine without attempts at global synthesis. Steven Shiffrin\u27s Dissent, Injustice, and the Meanings of America (hereinafter Dissent) stands squarely in the tradition of modest, localized theorizing about the freedom of speech. Rather than attempting to integrate all of free speech doctrine, he focuses on one free speech value: the value of dissent and its contribution to the illumination of particular First Amendment problems. This compact, densely argued, and brilliantly insightful book leaves free speech theory far the richer. Shiffrin has important things to say about flag burning, advertising, and racist speech. Moreover, Dissent addresses a topic that is all too often neglected by free speech theorists: the methods by which institutions other than courts, such as schools and the media, can promote the values of free speech. Throughout, Dissent never loses sight of its central thesis: The value of dissent is essential to understanding the freedom of speech. Part I of this review provides a brief exposition of some of Shiffin\u27s main points in Dissent. In part II, the author offers a critical analysis of Dissent’s central theory that the promotion and protection of dissent are central functions of the freedom of speech. In order to clarify Shiffrin\u27s central claims, he compares his analysis with John Stuart Mill\u27s famous defense of the liberty of expression in his essay On Liberty. Part III concludes with some observations about the lessons to be learned from Shiffrin\u27s successes and failures

Originalism and the Natural Born Citizen Clause

The enigmatic phrase natural born citizen poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a natural born citizen was likely a term of art, derived from the idea of a natural born subject in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of citizens and not subjects, introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency. What was the original public meaning of the enigmatic phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of settled meaning: some cases of inclusion and exclusion seem indisputable. As a matter of inclusion, anyone born on American soil with an American parent is clearly a natural born citizen. As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of naturalization is clearly not a natural born citizen. But these clear cases of inclusion and exclusion do not exhaust the possibilities. John McCain\u27s citizenship was conferred by statute--perhaps before, but perhaps after his birth. That leaves John McCain in a twilight zone--neither clearly naturalized nor natural born. This essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the essay explains the relevance of originalist constitutional theory to the controversy with special reference to the new originalism--the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism--the phrase natural born citizen may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a term of art, in particular, the idea that the meaning of natural born citizen derives from the English concept of a natural born subject. Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory

How \u3ci\u3eNFIB v. Sebelius\u3c/i\u3e Affects the Constitutional Gestalt

The thesis of this essay is that the most important legal effects of the Supreme Court\u27s decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty). After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement. This is a revised draft and replaces the draft of October 16, 2012, which is now on file with the author

Download It While It\u27s Hot: Open Access and Legal Scholarship

This article analyzes the shift of legal scholarship from the old world of law reviews to today\u27s world of peer reviews to tomorrow\u27s world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested laypersons worldwide

Public Legal Reason

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no--to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason. The essay also investigates the thesis--advanced by Louis Kaplow and Steven Shavell--that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell\u27s argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law\u27s justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law\u27s deliberations should be shallow and not deep. Law\u27s reason should be public

The Interpretation-Construction Distinction

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly! The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text (a constitution, statute, regulation, or rule) is applied or explicated. The first of these moments is interpretation – which I shall stipulate is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction – which I shall stipulate is the process that gives a text legal effect (either my translating the linguistic meaning into legal doctrine or by applying or implementing the text). I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology (the words interpretation and construction that express the distinction) could vary, legal theorists cannot do without the distinction. One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay, has three goals: (1) to explicate the nature of the interpretation-construction distinction, (2) to argue that this distinction marks a real difference, and (3) to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction – that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself. Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: (1) vagueness and ambiguity, and (2) semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, What is interpretation? and What is construction? In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensable

Originalist Theory and Precedent: A Public Meaning Approach

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to the debate. Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case. Here is the roadmap. Part I provides a brief introduction to contemporary originalism. Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court