Category Archives: Jurisprudence
Jan 14, 2019 Brian BixJurisprudence
“Legislative intention” is one of those concepts that many people use without recognizing the complexity of the underlying idea. The issue of statutory interpretation is frequently characterized as being a disagreement between “intentionalists” and “textualists,” an argument regarding what role, if any, lawmakers’ intentions should be given in determining the meaning and application of statutes. However, even if one starts from the position that legislative intentions are important, there is a further question regarding which intentions we are talking about.
This is where Marcin Matczak’s article, Three Kinds of Intention in Lawmaking, comes in. Matczak analyzes legislative intentions using the analytical structure J. L. Austin offered for talking about the intentions of everyday speech: locutionary intentions, illocutionary intentions, and perlocutionary intentions. The first, locutionary intentions, refers to (“semantic”) meaning—what the speaker was trying to say. The second, illocutionary intentions, refers to the type of speech act intended. Austin was well known for pointing out that utterances sometimes change things in the world—e.g., “I now pronounce you man and wife” can change the legal status of the individuals involved (he called such utterances “performative”). More generally, a set of words can be intended to be a special kind of utterance: e.g., a promise, request, order, etc. Austin’s third category, perlocutionary intentions, regard how the person making the utterance hopes to change the world through the words chosen (e.g., getting other people to do things because the speaker has made certain promises, requests, or orders). Continue reading "Layers of Intentions"
Dec 18, 2018 Edward RubinJurisprudence
Nicholas R. Parrillo, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power, 131 Harv. L. Rev. 1055 (2018).
What happens when a federal court issues a definitive order to a federal agency and the agency takes a how-many-divisions-does-the-Pope-have position in response? The answer that comes to mind is that the court can find the agency or its officials in civil or criminal contempt. But when is that finding available, how often is it used, what sanctions are attached to it, and what is their effect?
Nicholas Parrillo answers those questions in this comprehensive and carefully reasoned article. He collects (using a methodology described in an on-line appendix) all the records of federal court opinions “in which contempt against a federal agency was considered at all seriously” and all the records of district court docket sheets “in which a contempt motion was made…against a federal agency.” (P. 696.) After analyzing the results, Professor Parrillo concludes that while district courts are willing to issue contempt findings against federal agencies and officials, appellate courts almost invariably reverse any sanctions attached to such findings. But he also finds that the appellate courts reverse on case-specific grounds that do not challenge the authority of courts to impose sanctions for contempt, and that findings of contempt, even without sanctions, can operate effectively through a shaming mechanism. This article provides unique and valuable documentation about contempt, the “endgame of administrative law” and an obviously important element of our legal system. In addition, it contains major implications about the nature of the appellate process and about the normative force of law itself. Continue reading "Should Courts Punish Government Officials for Contempt?"
Dec 3, 2018 Sam KraussJurisprudence
In the mid-aughts, philosophers began to seriously consider the following question: how should you revise a belief, if at all, upon learning that you disagree with someone you trust? This has come to be known as the problem of peer disagreement. It’s a vexing problem. In the face of disagreement, our inclination is to remain confident. Yet, it is difficult to say why we should: if you think your friend is equally smart, and she reviewed the same information, what reason do you have to think that, in this particular case, you’re right and she’s wrong? On the other hand, if we should become much less confident, this seems, as philosopher Adam Elga puts it, rather spineless. And, while disagreement may prompt you to recheck your math on a split bill, it’s unlikely you’d rethink the morality of abortion. What, if anything, about the cases licenses distinct treatment?
Philosophers have proposed various responses. But, until recently, a search for “peer disagreement” in the legal literature would have yielded few results. Thankfully, a slew of articles has remedied this. Alex Stein writes on tribunals whose members come to the same conclusion, but for different reasons, and, separately, about post-conviction relief in light of conflicting expert testimony. Youngjae Lee writes about disagreement and the standard of proof in criminal trials. And, although they do not explicitly engage with the philosophical literature, Eric Posner and Adrian Vermeule discuss how judges on multimember courts ought to take into account the votes of their colleagues. William Baude and Ryan Doerfler’s article, in part a response to Posner and Vermeule, is required reading for anyone interested in disagreement and adjudication. Baude and Doerfler discuss what judges should do when they find out that other judges, or academics, disagree with them about a case. They land upon a moderate conciliationist position: become less confident when the disagreeing party is a “methodological friend,” and not otherwise. Continue reading "Disagreement and Adjudication"
Oct 17, 2018 Robin KarJurisprudence
Whether by statute or executive order, many agencies are required to produce cost-benefit analyses when proposing significant regulations and to justify decisions in its terms. The reason is not that cost-benefit analysis is perfect. Even its most thoughtful proponents recognize it has limitations. According to Matthew Adler and Eric Posner, for example, “[m]odern textbooks on [cost-benefit analysis] are plentiful, and some of them are optimistic about the usefulness of the procedure, but most of them frankly acknowledge its serious flaws and the inadequacy of standard methods for correcting these flaws.”
Most proponents of cost-benefit analysis nevertheless suggest that when it comes to agency decision-making, no better and feasible alternative currently exists. Whether that is true depends on what the alternatives are. I have recently found A Reliability-Based Capabilities Approach useful in this regard. I believe it offers the right building blocks to articulate an alternative, capabilities approach to agency decision-making that may prove useful in a wide range of domestic policy contexts. Continue reading "Adapting Capabilities Approaches to Domestic Policy Problems"
Oct 2, 2018 W.A. EdmundsonJurisprudence
David Adler,
The Centrist Paradox: Political Correlates of the Democratic Disconnect (May 01, 2018), available at
SSRN.
The very idea of a meaningful left-center-right political spectrum always seemed suspect to me. Many commentators have warned against conflating cultural and economic “wings.” The cultural left wants to get the state out of the bedroom (so to speak). The economic left wants to get the state into the boardroom. The cultural right wants to inject the state into the bedroom, to regulate sexual and procreative matters. The economic right wants the state out of the boardroom, sweeping away pesky regulations of the workplace and the market.
Plainly, one might be on the economic right but on the cultural left, or vice versa. It would be a mistake to try to cram these different dimensions into one. Would someone who happened to fall simultaneously on the economic left and the cultural right count as…a centrist? An outlier? (Gene Debs called socialism “Christianity in action“—where does that put him?)
Set this worry aside, and assume that correlations with, say, attitudes about immigration serve to validate the use of a one-dimensional spectrum. Extensive surveys have been conducted that ask respondents where they place themselves. Some of these surveys go on to ask about attitudes toward democracy and elections and the importance of having a strong, decisive leader unfettered by a congress or parliament. David Adler, a young researcher who recently moved from London to Athens, has looked at this data and has uncovered what he calls the “Centrist Paradox.” Anyone who is concerned about the direction democracies are taking ought to take a careful look, too. Continue reading "Does the Center Want to Hold?"
Sep 5, 2018 Barbara LevenbookJurisprudence
Although in most states and in the federal system, the law’s answer to the title question is “yes,” Youngjae Lee’s answer—with a qualification it will take the rest of this jot to explain—is “no.” To be more precise, his answer, surprisingly, is that it depends on the issue that is liable to disagreement. Making certain assumptions, Lee argues that unanimity is the best rule to adopt for juries reaching decisions about empirical facts in criminal cases. In these circumstances, requiring unanimity among jurors is both most faithful to the beyond-the-reasonable-doubt requirement for conviction and most faithful to the justification of this requirement. But juries must make decisions on all of the elements of crimes (and sometimes on affirmative defenses, I might add); to do this, often juries must make decisions on issues that are at least partly evaluative. (Lee calls them “moral issues.”) Some of his examples come from the core of criminal law: rape (reasonable belief in consent or a reasonable expectation that defendant recognize lack of consent) or homicide (depraved-heart murder, reckless homicide, self-defense). For these decisions, Lee argues, unanimity is not the rule to adopt.
He arrives at these conclusions by assuming a principle of rationality that has lately attracted attention from epistemologists: the “equal weight view.” That view says that if there is disagreement among persons with equal cognitive capabilities and equal access to information (“epistemic peers”), each belief is equally reasonable, and so, has equal weight. Each person should adjust his belief in the direction of those with whom he or she disagrees. In a simple case of 11-1 disagreement where eleven have the highest confidence about the defendant’s guilt, the equal weight view requires that they lower their confidence. Under some circumstances, lowering by the eleven results in an insufficient average level of confidence among all the jurors—insufficient to satisfy the requirement of being beyond a reasonable doubt—so a unanimous verdict of not guilty should be reached. If the sole dissenter is not very confident in his opinion for acquittal, the average belief in the probability of guilt may remain high enough to satisfy the standard of beyond a reasonable doubt and so, a unanimous verdict of guilty should be reached. But not if the level of confidence satisfying the beyond-a-reasonable-doubt standard is very stringent. Then any amount of dissent regarding conviction leads on the equal weight view to acquittal. Continue reading "Does Belief Beyond a Reasonable Doubt Require Unanimity Among Jurors?"
Jul 24, 2018 Dennis PattersonJurisprudence
Legal positivism—or one style of doing positivist legal theory—is dead. Of course, there are different types of legal positivists in the world. For example, some legal positivists take a page out of the book of their opposite number, natural law theorists. But natural law theory —belief in a single right moral answer to legal questions—is going nowhere. To believe otherwise is to evince embarrassingly bad aesthetic judgment. Better to revive/reframe legal positivism. The way to do that is to return to the work of the master, Hans Kelsen, for it is only through a rethinking of Kelsen that legal positivism can be saved from its most ardent supporters in Oxbridge and North America.
This is the opening gambit to one of the most intriguing books in legal theory in recent memory. Alexander Somek—who has written two brilliant books on EU law and an equally impressive book on global constitutionalism —has produced a book every Anglophone legal theorist should read. To be sure, Somek writes in a style most Anglophone legal philosophers will find off-putting. While references to Hegel and Fichte abound, I have never read anyone who has a comparable command of the secondary literature in Analytic Legal Theory. Somek has read everything (in legal theory, analytic philosophy, German philosophy and more) and his analysis of the work of contemporary analytic legal theorists is itself ample reward for the time needed to consider his arguments. Continue reading "After Legal Positivism"
Jun 27, 2018 Michael GreenJurisprudence
Christopher M. Newman,
Hohfeld and the Theory of In Rem Rights: An Attempted Mediation in
The Legacy of Wesley Hohfeld (forthcoming 2018), available at
SSRN.
Rights come in different types, and the failure to distinguish among them can lead one into errors. So argued Wesley Newcomb Hohfeld, who—in two articles published in the Yale Law Journal in 1913 and 1917—offered a highly influential categorization of rights by type. This marvelous collection of essays, edited by Shyam Balganesh, Ted Sichelman and Henry Smith, assesses the Hohfeldian legacy. I’ll largely focus on Christopher Newman’s contribution, which I found particularly helpful. Some property scholars have criticized Hohfeld’s approach as unable to account for the distinctive character of property rights. Newman argues, I think rightly, that the two are compatible.
That Hohfeld was correct to distinguish rights by their type is undisputed. The right that I have to be present on Blackacre by virtue of owning it and the right that I have as a boxer to punch my opponent are clearly different in structure. As Hohfeld would describe it, my right to punch is a privilege only, whereas my right to be on Blackacre includes privileges and claims. X has a privilege with respect to Y that X perform act φ if and only if, by φ-ing, X violates no duty to Y. X has a claim with respect to Y that Y φ if and only if Y has a duty to X to φ. I have a privilege to punch my opponent, because, by punching him, I do him no wrong. But this “right” to punch includes no claim with respect to him: he has no duty to let himself be punched. My right to be on Blackacre, by contrast, includes not only privileges (by being on Blackacre, I violate no duty to you) but also claims (you cannot interfere with my being on Blackacre, for example, by expelling me from it). (For the record, Hohfeld identified two other types of right—powers and immunities—and would say that my rights with respect to Blackacre include them too, but I leave these details aside.) Continue reading "Hohfeld and Property"
May 30, 2018 Brian TamanahaJurisprudence
Jurisprudence usually changes gradually and imperceptibly, with large-scale shifts recognizable only with the benefit of hindsight. Seldom does it occur that a single piece signals a dramatic turn in the field. A prime example of a transformation-signaling piece is Karl Llewellyn’s A Realistic Jurisprudence—the Next Stop, announcing the emergence of legal realism. Llewellyn’s article did not itself produce the transformation; rather, he identified a generational shift in jurisprudential thought that was already taking place, and he sought to bring attention to this shift and the themes around which it revolved. The article (and its follow-up, Some Realism About Realism: Responding to Dean Pound) served to crystallize and give a label to what theretofore had been an inchoate development. Following this article, legal realism would be criticized, debated, and elaborated. A new school of jurisprudential thought thus was born.
In Pursuit of Pluralist Jurisprudence (2017), edited by Nicole Roughan and Andrew Halpin, might turn out to be another transformation-signaling piece in jurisprudence, though its impact will not be known until a generation has passed. There are several reasons to think it might achieve this stature. For one, like Llewellyn’s piece, this book has a catchy descriptive title that dubs the nascent field “pluralist jurisprudence.” Furthermore, the volume contains ambitious original essays by established, as well as rising, jurisprudential figures from different parts of the world: Nicole Roughan and Andrew Halpin (Introduction and The Promises and Pursuits of Pluralist Jurisprudence), Roger Cotterrell (Do Lawyers Need a Theory of Legal Pluralism?), Maksymilian Del Mar (Legal Reasoning in Pluralist Jurisprudence), Cormac Mac Amhlaigh (Pluralising Constitutional Pluralism), Ralf Michaels (Law and Recognition—Toward a Relational Concept of Law), Sanne Takema (The Many Uses of Law), Joseph Raz (Why the State?), Detlef von Daniels (A Genealogical Perspective on Pluralist Jurisprudence), Stefan Sciaraffa (Two Conceptions of Pluralist Jurisprudence), Neil Walker (The Gap Between Global Law and Global Justice), Margaret Davies (Plural Pluralities of Law), Kirsten Anker (Postcolonial Jurisprudence and the Pluralist Turn), and Martin Krygier (Legal Pluralism and the Value of the Rule of Law). As their titles indicate, the essays cover a range of topics in relation to legal pluralism. Continue reading "The Turn to Pluralist Jurisprudence"
Apr 26, 2018 W.A. EdmundsonJurisprudence
This concise and lucid book “is a summary of our current collective understanding of the method by which some societies decide who would govern them.…” (P. VIII.) The author is a professor of politics and economics at NYU, and an esteemed authority in the field of political economy. The book could not be timelier: many of us simply cannot understand how elections got us to where we are now. Bafflement can beget both anger and apathy. Much of the collective social-scientific understanding Przeworski relates will be deflating even for those who have already cast aside illusions. Nonetheless, he urges us to keep on bothering.
The book begins with a reminder that “elections are a modern phenomenon.” (P. 13.) The first national legislative election was held in 1788, to the United States Congress. Since then, elections have become an almost universal norm: today, “all but a handful of countries have legislatures elected by universal [qualified] suffrage and chief executives either elected in popular elections or indirectly by elected parliaments.” (P. 17.) The elections boom was accompanied by, and surely to some degree motivated by, the Rousseavian aspiration to reconcile humankind’s innate freedom with the fact that coercive government is here to stay. This yearning for self-government finds its expression in the rituals of popular elections. Continue reading "It Can’t Happen Here, Has It?"
