Taking the Literary Turn

Dec 15, 2009 Pat GudridgeConstitutional Law

Pat Gudridge

This is a book about the fictionalization of the origins of law in later Stuart England.  My focus is on crucial literary texts such as John Milton’s Paradise Lost and John Dryden’s Indian Emperour, works devoted to demanding of the audience a set of structured interpretive deliberations about the first principles of government, the charismatic utterance of law, and the transition from savagery to civility.  At the heart of such an intellectual program is the norm and practice of equity….  Equity is a moral principle (equal justice, fairness), an interpretive method (summoning the original intention or spirit of a law in order to judge fully particular acts or events), and a gesture of sovereign mercy (relaxing the rigorous letter of the law in order to ensure justice).  For the writers I study, equity is habit of thought that may be cultivated through fictional methods.  …  I take as given the claim … that in the later Stuart period, serious literary texts are a crucial language for the public constitution of the legal norms and conceptions of sovereignty, subjecthood, and political authority.  Moreover, I share the view that literary texts are often the most effective and lasting language for explaining and legitimating legal regimes.  (1-2)

This is a book I like a lot in part because of who – professionally – Elliott Visconsi is.  He wrote the book while an assistant professor of English.  Lines of Equity is careful tenure track work.  Visconsi announces right at the beginning (“I take as given”) that he is working within a field already mapped (naming and footnoting his predecessors in the passage I delete.)  And he was also an assistant professor of English at Yale – making his way, therefore, within one of the most established, celebrated, central English departments in American academia.  There is nothing radical, it appears – or not much – in Visconsi’s project.  Constitutional thinking is, apparently, a pretty much accepted starting point for exploring the organization and power of literary works. Professor Visconsi cheerfully announces on his Yale webpage that he will “spend a year studying US and comparative constitutional law at Yale Law School courtesy of a Mellon Foundation New Directions Fellowship.  The major focus of my current research touches on the cultural and legal history of the separation of church and state….” Continue reading "Taking the Literary Turn"

Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?

Nov 30, 2009 Mark TushnetConstitutional Law

Mark Tushnet

Suppose a suburban city council enacted an ordinance barring the display of any Alexander Calder stabiles or Jeff Koons “sculptures” in any place visible by the public, believing that Calders and Koonses are just ugly. I suspect that most people who know something about the Constitution would think that the city’s ordinance is an obvious violation of the First Amendment’s protection of freedom of speech. After all, we have it on the highest authority that the First Amendment “unquestionably shield[s]” Jackson Pollock’s paintings: If Pollock, a fortiori Koons, whose sculptures at least look like something.

People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. (Here “covered by the First Amendment” means something like “the First Amendment is relevant to assessing the constitutionality of regulation,” and should be distinguished from “protected by the First Amendment,” which means “can’t be regulated consistent with the First Amendment.”) What follows are some quite rambling thoughts provoked by reading Bezanson’s book. Continue reading "Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?"

The Fact of the Matter

Nov 16, 2009 Paul HorwitzConstitutional Law

Paul Horwitz

“Facts,” the songwriter David Byrne once observed, “all come with points of view.” Americans, Frederick Schauer adds, credit any number of “facts” with points of view. President Obama is not “President” Obama, but a constitutionally ineligible interloper born in Kenya. President Bush was hardly surprised by the 9/11 attacks, given that his government either staged them or had advance warning of them. And so on. The same phenomenon is observable across the world. There surely are “facts” about the conduct of the Israeli military and Hezbollah in Lebanon, or the proper treatment for AIDS in South Africa, but they are hedged round with points of view, some sensible and some lunatic. That there is a fact of the matter Schauer does not doubt; but there is today, he says, an apparent “increasing and unfortunate acceptance of factual falsity in public communication.”

What will be more surprising to many is that facts are so poorly accounted for in First Amendment law. The First Amendment and its jurisprudence and scholarship are startlingly reticent on questions of factuality and falsity. This is the subject of Schauer’s recent Melville B. Nimmer Memorial Lecture, Facts and the First Amendment, delivered this past October at UCLA Law School. (Or so I assume!) Schauer does not seek to fill in all the gaps and provide a detailed First Amendment theory of facts. Instead, he argues that the First Amendment’s inability to deal directly with these concerns is a symptom of its “smallness” – of the extent to which many of the questions that are seemingly central to the law of free speech lie outside its boundaries and in the realm of “politics, economics, and sociology” whose dimensions “are far more important than the legal and constitutional ones.” Continue reading "The Fact of the Matter"

Other Rights

Oct 27, 2009 Pat GudridgeConstitutional Law

Pat Gudridge

Kurt Lash starts with a well-known, seemingly minimalist reading of the Ninth Amendment’s content, maybe James Madison’s own.  Whatever rights we conclude the text of the United States Constitution recognizes are not the only rights extant – however originating – and constitutional interpretation should proceed consistently, acknowledge somehow these other rights.  “Other rights,” Lash thinks, include collective rights of self-government – the power of people, institutionalized in various ways, to decide for themselves the substance of the particular rights and duties organizing their legal relationships.  The Ninth and Tenth Amendments therefore appear to overlap, not just because of the accident of their identical concluding references to “the people,” but because, read together, they describe a joint specification of proper approaches to reading the remainder of the United States Constitution itself: specifications (“enumerations”) of rights and powers should be read as limited – their text should be read restrictively – in order to leave space for “other rights,” including the specifying power to define or not define particular rights and duties.  This last proposition, Lash asserts, applies to the Fourteenth Amendment in the same way that it does to any other federal constitutional specification of rights.  It may be that this amendment in several ways restricts the ability of state governments and peoples to define individual rights and duties, but it does not deny the primary ability of governments and peoples to engage in rights defining exercises, and therefore the restrictions that the Amendment sets should be read in as limited a way as possible in order not to render meaningless the possibility of continuing self-government.

This account of the Ninth Amendment and its implications may or may not fit well with the thinking of the drafters or ratifiers of the Amendment, the companion Tenth Amendment, and the Fourteenth Amendment.   Randy Barnett and Kurt Lash debate the matter in an exchange published in the same issue of the Stanford Law Review in which Lash’s principal discussion appears.  For present purposes, however, the key fact is the remarkably forceful bias that the juxtaposition of Lash’s Ninth Amendment and Tenth Amendments generates: not just suggestive of much of the signal jurisprudence of the late-Rehnquist Supreme Court; not just suggestive of an account of the motivation – the preoccupation with the idea of limitation – evident on the face of the Supreme Court decisions like Lochner and Hammer v. Dagenhart; but also (seemingly – Lash himself does not push his argument very far in this direction) a point of departure for a defense of the Court’s famous Fourteenth Amendment limiting opinions in its Slaughterhouse and Civil Rights decisions. Continue reading "Other Rights"

Eclectic Decision Theory

Oct 27, 2009 Adrian VermeuleConstitutional Law

Adrian Vermeule

Itzhak Gilboa is a prominent economist who has made large contributions to decision theory, including the theory of decisionmaking under uncertainty (as opposed to risk) and the use of case-based or analogical strategies of reasoning, both of which are important topics for legal theory.  In this unpublished paper, Gilboa offers a relatively informal and accessible overview of conceptual and empirical problems in and with decision theory.  Gilboa writes as a sympathetic and informed critic from within, rather than a hostile critic from without, which gives his analysis all the more weight.

Gilboa provides an introduction to five theoretical questions currently troubling the field: the status and nature of the rationality assumption, the meaning of “probability” and the limits of the Bayesian approach to probability, the meaning of “utility” and the relationship(s) between utility and notions such as well-being and happiness, the choice between rules and analogies as strategies of reasoning, and the problem of group decisionmaking, including the key question whether and when groups make better or worse decisions than the individuals who constitute them (“the wisdom of crowds” versus “the madness of crowds”).  All five sections are highly illuminating, but I will discuss only one, which is Gilboa’s treatment of probability and uncertainty.  The issues are central for legal and political decisionmaking, in which information costs are high and experiments – natural or otherwise – are usually unthinkable, so that certainty is rare. Continue reading "Eclectic Decision Theory"

Meet the Editors

Oct 26, 2009 Michael FroomkinConstitutional Law

Section Editor

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (”jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.

Professor Patrick O. Gudridge
Associate Dean University of Miami School of Law Continue reading "Meet the Editors"

Jotwell Mission Statement

Oct 19, 2009 Michael FroomkinConstitutional Law

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"