In recent years there has been a resurgence of civil disobedience over public land policy in the West, sometimes characterized by armed confrontations between ranchers and federal officials. This trend reflects renewed assertions that applicable positive law violates the natural rights (sometimes of purportedly divine origin) of ranchers and other land users, particularly under the prior appropriation doctrine and grounded in Lockean theories of property. At the same time, Native Americans and environmental activists on the opposite side of the political-environmental spectrum have also relied on civil disobedience to assert natural rights to a healthy environment, based on public trust and other principles. This article explores the legitimacy of natural law assertions that prior appropriation justifies private property rights in federal grazing resources. A companion article will evaluate the legitimacy of public trust and related assertions of natural law to support environmental protection.
{"title":"Natural Resources and Natural Law Part I: Prior Appropriation","authors":"R. Adler","doi":"10.2139/SSRN.3124428","DOIUrl":"https://doi.org/10.2139/SSRN.3124428","url":null,"abstract":"In recent years there has been a resurgence of civil disobedience over public land policy in the West, sometimes characterized by armed confrontations between ranchers and federal officials. This trend reflects renewed assertions that applicable positive law violates the natural rights (sometimes of purportedly divine origin) of ranchers and other land users, particularly under the prior appropriation doctrine and grounded in Lockean theories of property. At the same time, Native Americans and environmental activists on the opposite side of the political-environmental spectrum have also relied on civil disobedience to assert natural rights to a healthy environment, based on public trust and other principles. This article explores the legitimacy of natural law assertions that prior appropriation justifies private property rights in federal grazing resources. A companion article will evaluate the legitimacy of public trust and related assertions of natural law to support environmental protection.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"60 1","pages":"739"},"PeriodicalIF":0.0,"publicationDate":"2018-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48087019","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed because even hyper-formalist legal opinions, they argued, would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when observed in non-judicial actors. In this article, I argue that judicial uncivil obedience is possible, discuss examples of lower court uncivil obedience to U.S. Supreme Court decisions, speculate why uncivil obedience might be a particularly attractive form of dissent by inferior courts in a hierarchical judicial system, and argue that my examples satisfy Bulman-Pozen and Pozen’s criteria. In addition, I argue that the constraints on uncivil obedience they identify, which can limit the opportunity for its exercise, have analogues that likewise limit the ability of judges to engage in uncivil obedience.
{"title":"Can Judges Be Uncivilly Obedient","authors":"Brannon P. Denning","doi":"10.2139/SSRN.3123167","DOIUrl":"https://doi.org/10.2139/SSRN.3123167","url":null,"abstract":"In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed because even hyper-formalist legal opinions, they argued, would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when observed in non-judicial actors. In this article, I argue that judicial uncivil obedience is possible, discuss examples of lower court uncivil obedience to U.S. Supreme Court decisions, speculate why uncivil obedience might be a particularly attractive form of dissent by inferior courts in a hierarchical judicial system, and argue that my examples satisfy Bulman-Pozen and Pozen’s criteria. In addition, I argue that the constraints on uncivil obedience they identify, which can limit the opportunity for its exercise, have analogues that likewise limit the ability of judges to engage in uncivil obedience.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"60 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2018-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45753433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not rejected other measures forbidden by international law. This article therefore examines whether a president has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether international or federal law generally constrains a president as commander-in-chief, however, its focus is the extent to which Congress requires the U.S. military to comply with the law of war in its disciplinary code, the Uniform Code of Military Justice (UCMJ). It clarifies the extent to which Article 18 of the UCMJ, which vests general courts-martial with jurisdiction over offenders and offenses triable by military tribunal and to impose punishments “permitted” by the law of war, requires law of war compliance. It explains how Article 18 empowers courts-martial to try and punish not only war crimes defined by international law but also other law of war violations that entail a criminal offense under the UCMJ. Put differently, the article clarifies why reasonable compliance with the law of war is necessary to justify common war measures that are otherwise crimes punishable under the UCMJ, such as murder, maiming, assault, and arson. The article then explains why this domestic execution of the law of war limits a president’s authority as Commander-in-Chief: a president does not possess constitutional power to override congressional regulation of the military. So long as Article 18 remains unchanged, no president may order or authorize war crimes or other law of war violations that entail a crime under the UCMJ.
{"title":"Why a President Cannot Authorize the Military to Violate (Most of) the Law of War","authors":"John C. Dehn","doi":"10.2139/SSRN.2941159","DOIUrl":"https://doi.org/10.2139/SSRN.2941159","url":null,"abstract":"Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not rejected other measures forbidden by international law. This article therefore examines whether a president has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether international or federal law generally constrains a president as commander-in-chief, however, its focus is the extent to which Congress requires the U.S. military to comply with the law of war in its disciplinary code, the Uniform Code of Military Justice (UCMJ). It clarifies the extent to which Article 18 of the UCMJ, which vests general courts-martial with jurisdiction over offenders and offenses triable by military tribunal and to impose punishments “permitted” by the law of war, requires law of war compliance. It explains how Article 18 empowers courts-martial to try and punish not only war crimes defined by international law but also other law of war violations that entail a criminal offense under the UCMJ. Put differently, the article clarifies why reasonable compliance with the law of war is necessary to justify common war measures that are otherwise crimes punishable under the UCMJ, such as murder, maiming, assault, and arson. The article then explains why this domestic execution of the law of war limits a president’s authority as Commander-in-Chief: a president does not possess constitutional power to override congressional regulation of the military. So long as Article 18 remains unchanged, no president may order or authorize war crimes or other law of war violations that entail a crime under the UCMJ.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"59 1","pages":"813"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45987065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Virtual representation-the representation of people who cannot vote-has come to occupy a distinctly disfavored position in modern conceptions of democracy. For most of our history, this was not the case. Before women's suffrage, most U.S. citizens were represented only virtually. Today, virtual representation remains a substantial part of our democratic order, but it is a part that we tend to ignore. For instance, about a quarter of all U.S. citizens cannot vote because they are children. They, and others who cannot vote, are virtually represented. This Article argues, first, that virtual representation is an inevitable part of any democratic system; second, that it has value, even if it is generally second-best to actual representation; and third, that as long as we are going to do this, we ought to try to do it as well as we can. The Article traces the origins of the American aversion to virtual representation, then begins to build an account of how some forms of virtual representation are better or worse than others. Surprisingly, under conditions of sufficient geographic segregation along various politically salient dimensions, it turns out that our system of electing nearly all representatives from single-member districts may actually ensure non-voters tolerably good virtual representation. That is, as long as we count all the people, not just the voters, for purposes of apportionment-and similarly, as long as we count prisoners at their last address rather than at the location of their prison (this is the problem of so-called "prison gerrymandering"). Finally, the Article argues that the United States Constitution itself constructs a mixed system of actual and virtual representation. The question of the reach of this federal constitutional model-and in what contexts, if any, it mandates the current practice of drawing districts with equal numbers of people, rather than equal numbers of voters-is likely to come before the Supreme Court sometime after the 2020 Census.
{"title":"Taking Virtual Representation Seriously","authors":"Joseph Fishkin","doi":"10.2139/SSRN.3118775","DOIUrl":"https://doi.org/10.2139/SSRN.3118775","url":null,"abstract":"Virtual representation-the representation of people who cannot vote-has come to occupy a distinctly disfavored position in modern conceptions of democracy. For most of our history, this was not the case. Before women's suffrage, most U.S. citizens were represented only virtually. Today, virtual representation remains a substantial part of our democratic order, but it is a part that we tend to ignore. For instance, about a quarter of all U.S. citizens cannot vote because they are children. They, and others who cannot vote, are virtually represented. \u0000This Article argues, first, that virtual representation is an inevitable part of any democratic system; second, that it has value, even if it is generally second-best to actual representation; and third, that as long as we are going to do this, we ought to try to do it as well as we can. The Article traces the origins of the American aversion to virtual representation, then begins to build an account of how some forms of virtual representation are better or worse than others. Surprisingly, under conditions of sufficient geographic segregation along various politically salient dimensions, it turns out that our system of electing nearly all representatives from single-member districts may actually ensure non-voters tolerably good virtual representation. That is, as long as we count all the people, not just the voters, for purposes of apportionment-and similarly, as long as we count prisoners at their last address rather than at the location of their prison (this is the problem of so-called \"prison gerrymandering\"). \u0000Finally, the Article argues that the United States Constitution itself constructs a mixed system of actual and virtual representation. The question of the reach of this federal constitutional model-and in what contexts, if any, it mandates the current practice of drawing districts with equal numbers of people, rather than equal numbers of voters-is likely to come before the Supreme Court sometime after the 2020 Census.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"59 1","pages":"1681"},"PeriodicalIF":0.0,"publicationDate":"2018-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44108205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sexual assault remains at high levels despite decades of legal reforms. The recent wave of accusations against public figures signals both the persistence of the problem and a new political climate for addressing it. The Article argues that Congress should make forcible rape a federal crime, to the limits of the Commerce Clause. This would bring federal assets to the fight against rape by redirecting them from enforcement of possessory crimes. The simple statutory proposal might be accompanied by a more ambitious reorganization of the Justice Department to include a Bureau of Violent Crimes. Replies are offered to objections based on federalism, civil liberties, feminism, and systemic feedback loops.
{"title":"Why Rape Should Be a Federal Crime","authors":"Donald A. Dripps","doi":"10.2139/SSRN.3095741","DOIUrl":"https://doi.org/10.2139/SSRN.3095741","url":null,"abstract":"Sexual assault remains at high levels despite decades of legal reforms. The recent wave of accusations against public figures signals both the persistence of the problem and a new political climate for addressing it. The Article argues that Congress should make forcible rape a federal crime, to the limits of the Commerce Clause. This would bring federal assets to the fight against rape by redirecting them from enforcement of possessory crimes. The simple statutory proposal might be accompanied by a more ambitious reorganization of the Justice Department to include a Bureau of Violent Crimes. Replies are offered to objections based on federalism, civil liberties, feminism, and systemic feedback loops.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"60 1","pages":"1685"},"PeriodicalIF":0.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3095741","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48471675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable — and publicly comprehensible — standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander — the one provided the name for this category of pernicious partisanship — a fixed historical benchmark by which to judge the distortion of legislative districts. This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives — after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch — not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.
{"title":"The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent","authors":"E. Foley","doi":"10.2139/SSRN.2999738","DOIUrl":"https://doi.org/10.2139/SSRN.2999738","url":null,"abstract":"It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable — and publicly comprehensible — standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander — the one provided the name for this category of pernicious partisanship — a fixed historical benchmark by which to judge the distortion of legislative districts. \u0000This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives — after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch — not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"59 1","pages":"1729"},"PeriodicalIF":0.0,"publicationDate":"2017-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48251763","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For several decades, evidence theorists have puzzled over the following paradox, known as the "conjunction problem." Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability, will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements) or the plaintiff loses despite having met the condition of proving each element to the stated threshold. To solve this "conjunction problem," evidence theorists have advanced such proposals as changing the rules of probability, barring probability theory entirely from analysis of adjudicative factfinding, abandoning the procedural principle that the defendant need not present a narrative of innocence or non-liability, or dispensing with the requirement that the overall claim must meet an established burden of proof. This article argues that the conjunction paradox in fact presents a theoretical problem of little if any consequence. Dropping the condition that proving each element is a sufficient, as opposed to merely a necessary condition for proof of a claim, makes the conjunction problem disappear. Nothing in logic or probability theory requires this "each element/sufficiency" condition, and the legal decision rules reflected in most jury instructions do not mandate it. Once this "each element/sufficiency" condition is removed, all that is left of the conjunction problem is a "probability gap," an intuitive but ill-founded impression that the mathematical underpinnings of the conjunction problem are "unfair" to claimants. This probability gap is considerably narrowed by recognizing the probabilistic dependence of most facts internal to a given claim, and by applying the correct multiplication rule for probabilistically dependent events. Finally, the article argues that solving the conjunction problem is an insufficient ground either to abandon probability theory as a useful analytical tool in the context of adjudicative factfinding, or reform decision rules for trial factfinders.
{"title":"The Conjunction Problem and the Logic of Jury Findings","authors":"David S. Schwartz, E. Sober","doi":"10.2139/SSRN.2927252","DOIUrl":"https://doi.org/10.2139/SSRN.2927252","url":null,"abstract":"For several decades, evidence theorists have puzzled over the following paradox, known as the \"conjunction problem.\" Probability theory appears to tell us that the probability of a conjunctive claim is the product resulting from multiplying the probabilities of its separate conjuncts. In a three element negligence case (breach of duty, causation, damages), a plaintiff who proves each element to a 0.6 probability, will have proven her overall claim to a very low probability of 0.216. Either the plaintiff wins the verdict based on this low probability (if the jury focuses on elements) or the plaintiff loses despite having met the condition of proving each element to the stated threshold. To solve this \"conjunction problem,\" evidence theorists have advanced such proposals as changing the rules of probability, barring probability theory entirely from analysis of adjudicative factfinding, abandoning the procedural principle that the defendant need not present a narrative of innocence or non-liability, or dispensing with the requirement that the overall claim must meet an established burden of proof. This article argues that the conjunction paradox in fact presents a theoretical problem of little if any consequence. Dropping the condition that proving each element is a sufficient, as opposed to merely a necessary condition for proof of a claim, makes the conjunction problem disappear. Nothing in logic or probability theory requires this \"each element/sufficiency\" condition, and the legal decision rules reflected in most jury instructions do not mandate it. Once this \"each element/sufficiency\" condition is removed, all that is left of the conjunction problem is a \"probability gap,\" an intuitive but ill-founded impression that the mathematical underpinnings of the conjunction problem are \"unfair\" to claimants. This probability gap is considerably narrowed by recognizing the probabilistic dependence of most facts internal to a given claim, and by applying the correct multiplication rule for probabilistically dependent events. Finally, the article argues that solving the conjunction problem is an insufficient ground either to abandon probability theory as a useful analytical tool in the context of adjudicative factfinding, or reform decision rules for trial factfinders.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"59 1","pages":"619"},"PeriodicalIF":0.0,"publicationDate":"2017-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44759015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There has been a long-standing debate over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence. This article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like Letters of Marque and Reprisal, that are patently technical, and terms, like good behavior, that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers when to understand a term in its legal sense or its ordinary meaning sense. The article shows how to determine whether a document is written in the language of the law. The most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law, because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, it is more likely to written in legal language, because that language allows more precision. The language of similar documents provides additional evidence. Since other constitutions at the time were written in the language of the law, that militates in favor of reading the Constitution in that same language. The article supplies strong evidence that the Constitution is written in the language of the law. The article is the first to count the legal terms in the Constitution and approximates them at a hundred. Moreover, the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues. The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.
{"title":"The Constitution and the Language of the Law","authors":"John O. McGinnis, Michael B. Rappaport","doi":"10.2139/SSRN.2928936","DOIUrl":"https://doi.org/10.2139/SSRN.2928936","url":null,"abstract":"There has been a long-standing debate over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence. This article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like Letters of Marque and Reprisal, that are patently technical, and terms, like good behavior, that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers when to understand a term in its legal sense or its ordinary meaning sense. The article shows how to determine whether a document is written in the language of the law. The most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law, because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, it is more likely to written in legal language, because that language allows more precision. The language of similar documents provides additional evidence. Since other constitutions at the time were written in the language of the law, that militates in favor of reading the Constitution in that same language. The article supplies strong evidence that the Constitution is written in the language of the law. The article is the first to count the legal terms in the Constitution and approximates them at a hundred. Moreover, the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues. The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"59 1","pages":"1321"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68435073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia. We begin by identifying several factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss certain normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade, and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields. We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Appeals court judges use dictionaries far less relative to legislative history than do the justices; we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. In addition, the relative frequency of dictionary usage between the two court levels varies considerably depending on the subject area and the type of dictionary (general or legal). With respect to relative frequency for legislative history, the Supreme Court far more than the circuits courts invokes the record of changes in statutory text—either modified over multiple Congresses (statutory history) or developed in successive pre-enactment versions of a bill (drafting history). This “vertical history” is apparently more attractive, or less unattractive, to textualist justices than is traditional legislative history commentary such as committee reports. More broadly, circuit courts use legislative history regularly to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value. For both dictionaries and legislative history, the courts of appeals’ eclectic approach differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the justices’ interaction with all their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis.
{"title":"Protean Statutory Interpretation in the Courts of Appeals","authors":"J. Brudney, L. Baum","doi":"10.2139/SSRN.2745987","DOIUrl":"https://doi.org/10.2139/SSRN.2745987","url":null,"abstract":"This article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia. We begin by identifying several factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss certain normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade, and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields. We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Appeals court judges use dictionaries far less relative to legislative history than do the justices; we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. In addition, the relative frequency of dictionary usage between the two court levels varies considerably depending on the subject area and the type of dictionary (general or legal). With respect to relative frequency for legislative history, the Supreme Court far more than the circuits courts invokes the record of changes in statutory text—either modified over multiple Congresses (statutory history) or developed in successive pre-enactment versions of a bill (drafting history). This “vertical history” is apparently more attractive, or less unattractive, to textualist justices than is traditional legislative history commentary such as committee reports. More broadly, circuit courts use legislative history regularly to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value. For both dictionaries and legislative history, the courts of appeals’ eclectic approach differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the justices’ interaction with all their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"58 1","pages":"681"},"PeriodicalIF":0.0,"publicationDate":"2016-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring and filling gaps in the judicial architecture, that practice is, in contrast to the practices in Noel Canning and Zivotofsky, rarely entrenched against ordinary legal change. Second, the authority of historical practice in high-profile separation-of-powers disputes generally rests on a theory of acquiescence by one branch in the other’s actions; the federal courts cases, in contrast, ignore acquiescence and instead ground practice’s authority in its longstanding observance.The use of historical practice in federal courts law rests on a theory of prescription — that is, past practice derives authority from its sheer past-ness. This essay explores the centrality of prescription in Burkean political theory and suggests that cases relying on past practices can contribute to the development of a distinctively Burkean theory of constitutional law. This theory suggests that past practice plays an important constitutive role, but as in the federal courts cases, that role is not entrenched against ordinary legal change. The fact that historical practice is not entrenched — and can be changed through democratic processes — helps to answer several key criticisms of relying on practice in constitutional adjudication.
{"title":"Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law","authors":"E. A. Young","doi":"10.2139/SSRN.2739305","DOIUrl":"https://doi.org/10.2139/SSRN.2739305","url":null,"abstract":"Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring and filling gaps in the judicial architecture, that practice is, in contrast to the practices in Noel Canning and Zivotofsky, rarely entrenched against ordinary legal change. Second, the authority of historical practice in high-profile separation-of-powers disputes generally rests on a theory of acquiescence by one branch in the other’s actions; the federal courts cases, in contrast, ignore acquiescence and instead ground practice’s authority in its longstanding observance.The use of historical practice in federal courts law rests on a theory of prescription — that is, past practice derives authority from its sheer past-ness. This essay explores the centrality of prescription in Burkean political theory and suggests that cases relying on past practices can contribute to the development of a distinctively Burkean theory of constitutional law. This theory suggests that past practice plays an important constitutive role, but as in the federal courts cases, that role is not entrenched against ordinary legal change. The fact that historical practice is not entrenched — and can be changed through democratic processes — helps to answer several key criticisms of relying on practice in constitutional adjudication.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"58 1","pages":"535"},"PeriodicalIF":0.0,"publicationDate":"2016-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68281718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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