There There? Does State Constitutional Law Exist?

Jun 21, 2010 Pat GudridgeAdd a Comment

Pat Gudridge

Robert Williams, who teaches at the Rutgers-Camden Law School, is a long-time and very distinguished laborer in the field of state constitutional law – really, both a pioneer and a leader.  His book looks, at first glance, to be a grand summing up, an attempt at magisterial synthesis.  But it is in fact much better than that.

The table of contents tells the story.

The four chapters in part one depict state constitutions as distinctive, separately identifiable legal phenomena.  Williams briefly characterizes the form, content, quality, and political resonances typical to state constitutions; something of both their early pre-federal history and their later evolution; and the several constraints that federal law sets.  The four chapters in part three sketch the state constitutional law of separation of powers, highlighting differences as against federal approaches.  The single chapter that Williams marks as part four addresses interpretive questions, “with a specific focus on those that arise from the unique nature of state constitutions.”  (P. 311.)  The final two chapters address the modern history of state constitutional revision, noting the differences  in approaches taken in the states that have taken the matter seriously in the twentieth century – very briefly summarizing as well the nature of judicial review of constitutional change in state courts.

None of this would surprise Thomas Cooley, we might think, whose Constitutional Limitations shaped thinking about state constitutional law across much of the second half of the nineteenth century.  But I have omitted so far, obviously, any mention of the second part of Robert Williams’s book – “Rights Guarantees Under State Constitutions: The New Judicial Federalism.”  These three chapters show something new – new indeed not only as set against the substance of Cooley’s treatise but also vis a vis the argument of Justice Brennan in “State Constitutions and the Protection of Individual Rights,” his insurrectionary 1977 Harvard Law Review manifesto urging judges and lawyers to seize state constitutional law in service of a strong constitutional rights jurisprudence.  Cooley and Brennan might have disagreed about the specific content of “constitutional limitations.”  (Not always, of course: in a second treatise Cooley outlined, for example, something very much like the actual malice test that Brennan put to work – acknowledging Cooley – in New York Times v. Sullivan.)  But both thought that the idea of “constitutional limitations” securing individual rights was crucial.  Williams, however, shows that, once past the initial “thrill of discovery,” (P. 119)  “backlash” (P. 127) triggered “the long hard task” (P. 130) of “state and federal constitutional dialogue” (P. 131) – a nicely diplomatic way of noting that state courts these days, “in … the clear majority of cases” (P. 194) in which the question arises, refuse to develop independent state constitutional law of individual rights and instead follow federal law.

Hesitancy, it appears, takes three important forms.   State judges frame sequencing rules that work to limit the circumstances in which the question of whether to develop independent state constitutional law of individual rights may be seen as properly arising; they develop second order criteria for thinking about whether state constitutional law independent of federal constitutional law is a good idea; or they (sometimes state constitutional drafters do this too) affirmatively embrace “lockstepping,” simply preclude the possibility of deviating from federal understandings of individual rights.  It is, we might think, a strange combination of Prufrock (“do I dare I eat a peach”) and Ulysses and the Sirens.  Professor Williams is careful and tactful.  He describes the forms of hesitancy in considerable detail, the variations from state to state, the reactions in the commentary – in all, he takes it intensely seriously as a mode of thought.  But he also allows himself to note at one point: “It is substance, not form, that counts most.” (P. 144.)  And it is clear that Williams thinks that the so-called “criteria” cases verge repeatedly on category error:  “At its core, the criteria approach is based on a notion that interpretation of the Federal Constitution can somehow authoritatively set the meaning for similar provisions  of state constitutions.”  (P. 170)  His discussion of lockstepping includes a wonderful image Williams borrows (nicely ironically) from U.S. Supreme Court Justice Souter’s writing in his state court days: “A state’s constitutional provisions need not, and should not, be reduced to a ‘row of shadows’ through too much reliance on federal prcedent.”  (P. 228)

Robert Williams, I should stress, does not write alone (and does not claim to): Jim Rossi and James Gardner are about to publish an important collection of writings about the status of state constitutional law (they are important figures in the field as well).  Adrian Vermeule, among many others, has written importantly in the area.  But Williams perhaps brings the war back home better than anyone else – as not just a matter of abstract academic contemplation or extraordinary judicial pronouncement, but as a working problem for judges day to day: ordinary constitutional law.  And the tension the organization of his book creates is notable:  There plainly are state constitutions; there plainly is state constitutional law articulated, sometimes more or less uniformly, sometimes divergently, all over the place.  Why such uncertainty with regard to individual rights?  Williams suspects, it sometimes seems, that state judges are too much in awe of the Supreme Court.  It is also possible to wonder whether – notwithstanding the bravura introduction he writes – matters might be better if we embrace state constitutional law as indeed “a parochial, state-specific matter.”  (P. 8.)  Perhaps if we are able to recover within the constitutional law of particular states the complexity of particular textual settings, often tragic histories, and the accumulation of judicial improvisations, we might find the medium itself rich enough to sustain strong arguments.  Maybe, maybe not: for now, it is clear that Robert Williams has depicted state constitutional law as a challenging paradox: a picture with its vanishing point at its center.  (Lots to like here.)

The Mismatch Problem: Why Election Law Isn’t Always Built for the Electorate

Jan 25, 2010 Heather Gerken2 comments

Heather Gerken

Two articles by David Schleicher fit nicely into the Jotwell category of “things I like (lots).”   Schleicher is an assistant professor at George Mason Law School and a rising star in the field of election law.  Both pieces explore what he calls the “mismatch” problem—what happens when we ask voters to perform a constitutional role without the tools they need to do so.  The first piece explains why local elections in the U.S. don’t do much to hold local officials accountable.  The second piece explains why the European Parliament lacks “any semblance of democratic control” despite regular elections.

How is it possible to have elections without accountability?  Schleicher isn’t making any of the by-now-familiar arguments about incumbents’ use of gerrymandering, campaign finance, and other election devices to keep their seats.  Instead, he makes a far more provocative claim:  election laws interact with the voters’ own shortcomings to produce elections that are, in Schleicher’s view, meaningless.

Schleicher begins with the simple proposition, firmly rooted in the political science literature:  most voters are quite ignorant about political issues.   (Here Schleicher joins his GMU colleague, Ilya Somin, in thinking hard about the problem of political ignorance).   Drawing upon the work of Morris Fiorina, Schleicher argues that such “low information” or “rationally ignorant” voters nonetheless manage to make pretty good decisions in casting their ballots because they rely on the party label as a heuristic, keeping a “running tally” (Fiorina’s term) on the performance of the major parties.

The problem is that national politics dominate the political system in the U.S. and Europe.  National parties thus determine what each party “brand” signifies in the eyes of voters.  That means when an average voter casts a ballot at a local U.S. election or the EU elections, she’s really voting on her opinion about the national parties.   To offer some crude examples, city council members in the U.S. might get elected because city residents are thrilled to vote for Obama; EU members might get elected based on whether voters are outraged by an expenditure scandal confined to the national parliament (Great Britain) or what they think of the prime minister’s battle with his wife (Italy).

You can see the problem, of course.  Whether the parties are doing a good job running the country may have little or nothing to do with whether things are going well at the local or supranational level.  That’s why Schleicher makes some rather strong claims about accountability in each instance.   His basic view is that votes cast based on the performance of a different set of actors at a different level of governance can’t possibly provide democratic accountability.

Schleicher’s idea provides some nifty payoffs in both contexts.   The first paper, for instance, casts serious doubt on a conventional wisdom among a fair number of political scientists—that local elections are noncompetitive in the U.S. because local issues are non-ideological and thus can’t give rise to party politics.  Nonsense, says Schleicher, in a pretty spectacular academic take-down of some big names in political science.  He argues that there’s no reason to think that parties couldn’t fight about how to run local governments, which preside over such highly salient issues as local taxes, school funding, and crime prevention.   The problem is that we don’t have enough media or campaign spending in local elections to make local party brands meaningful.  Voters thus turn to the best heuristic they have—national party ID.   Schleicher notes, for instance, that no matter what is happening locally, in most places votes in local elections roughly track votes in national elections.   Schleicher bolsters his argument by identifying the instances where this isn’t true—where local parties manage to differentiate themselves from their national counterparts.  Those examples tend to occur in places like New York City, where there is enough media coverage and campaign spending for mayoral candidates to create a distinctive local brand.  Rudy Giuliani can escape the negative effects of the GOP label and win in heavily Democratic New York, but he would be stuck if he were running for mayor in New Haven.  (For those who think that the absence of partisan competition in local elections isn’t a problem because competition takes place in the primary or in a nonpartisan election, Schleicher’s paper will provide a healthy reminder of what happens when voters don’t have access to party labels—they tend not to show up or rely on less desirable short cuts, like the race or gender of the candidate, campaign spending, etc.).

If Schleicher is right, then the absence of local competition isn’t something that is “natural” or innate to local politics, as many academics have argued.  Instead, election law is the source of the mismatch problem.  After all, we could in theory structure elections so that voters have a shorthand that works at the local level.  For instance, we could ban national parties from running in local elections so that local parties could develop their own brand.  Election law, however, creates massive incentives to connect local parties to national ones.  Further, the First Amendment itself would pose a significant challenge to any effort to remedy this problem.

Schleicher also has interesting things to say about the EU.  There, he notes, scholars who study the EU’s democratic deficit either try to downplay its significance or suggest massive changes to the EU’s institutional structure to remedy it.  Schleicher’s proposal is more modest.  He suggests changing EU’s election requirements in order to give rationally ignorant European voters a better heuristic.  Schleicher proposes that the EU follow the lead of a handful of countries and “require[] political parties to get a certain threshold amount of the vote in a majority of EU countries in order to get any members elected from any country.”  Such a rule, argues Schleicher, would “force campaigns to be waged at the European, rather than Member State, level.”

These two papers are bubbling over with ideas, and that’s more than enough to qualify for a Jotwell entry.  But there’s one, additional reason to admire them.  Schleicher is trying to frame a research agenda for the field, one that would unite the work of a number of law professors (some of my research, here and here; work done by Michael Kang; and articles by Beth Garrett, here and here).  Schleicher is pushing on a core question for the field of election law:  how do electoral rules interact with a rationally ignorant electorate?

This is, of course, a question that has long obsessed political scientists.  Indeed, arguments in favor of a “responsible party government” (some of which hinged on the importance of providing voters better heuristics) were explicitly endorsed by the American Political Science Association in 1950.  It’s a wonder there’s anything left to say on the subject.   But political scientists have largely focused on improving existing heuristics rather than creating new ones where, as here, cues are unavailable or disserve the interests of voters.  Perhaps that because political scientists generally don’t think of themselves as agents for reform.  Perhaps it’s because they tend to eschew strong normative claims or are more interested in informal power than formal rules.  Law professors have stepped into the void.   Papers like these suggest that there’s more to say on these topics, and that Schleicher will play a leading role in these debates.

Taking the Literary Turn

Dec 15, 2009 Pat GudridgeAdd a Comment

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….”

Those of us who think that constitutions should be thought about, written about, generally argued over, by reading legal documents like constitutions (for example) or judicial opinions, supplemented (but mostly only supplemented) by some references to history or political theory or economics or sociology (for example) have to wonder:  What are we to make of our new cousins (new to many of us anyway, I think)?  Perhaps they are safely far removed, we will wave cheerfully when we notice them, but don’t really need to take them seriously.  Milton and Dryden and friends, after all, are safely famously long dead – right subjects for historical appreciation of whatever form, but not part of the present in which we think ourselves to be participating.  But the problem – and this is another reason why I like Visconsi’s book a lot – is that Visconsi’s ways of putting things really do resemble ours (or some of ours) quite a bit.

Consider this passage in Elliott Visconsi’s discussion of Paradise Lost – both bravura and dauntingly English professor-ish:

Let us recall here that equity is, in early modern political and rhetorical theory, the act of summoning the spirit of an utterance to create worldly justice.  It is both a political norm to be practiced in good government and an inherently personal (and sometimes dangerously) subjective deliberation.  The two prongs – the public and private strains – of equity are reflected in the formal structure of Paradise Lost.  On the one hand, Milton offers a heterodox, unstable invitation to deep and challenging deliberations over the spirit of divine utterance – this is the paideic method with which Milton corrects his wayward audience or cultivates revolutionary readers.  …  [Bow to Stanley Fish omitted.]  On the other hand, the poem makes an unambiguous, strident, and orthodox argument for divine equity.  …  [T]his rhetorical (rather than hermeneutic) appeal is the space within which Milton argues for equity as governmental norm.  Taken together, the interpretive and the rhetorical appeal in Paradise Lost are part of a broader commitment to equity as governmental norm and personal ethos.  The poem proposes simultaneously, and without contradiction, a private language of unstable, heterodox, individual deliberation and a normative public language….   (99-100)

Visconsi’s Milton is not quite Mike Seidman, of course – but there’s plainly a family resemblance.  (Louis Michael Seidman, Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law, 96 Yale L.J. 1006 (1987).)  What if we acknowledge the resemblance as something other than accidental – just another grilled cheese sandwich picture of Jesus?  What if legal thinking about constitutions is understood to overlap literary thinking about constitutions?  This is not an entirely surprising question, of course. Sometime ago, Robert Ferguson introduced us to the idea of “the literature of public documents,” and put the Constitution at the core of this canon.  But his reading was readily bracketed as history.  So too Visconsi’s if we want it to be.  What if we don’t?

I don’t mean that we should treat Paradise Lost, say, as necessarily a precursor text (although that may make sense.)  Rather, I think that the idea of the constitution as literary may have implications for the idea of the constitution as legal.

• Reading in a context we recognize as literary, we are entirely comfortable placing any particular text within a larger stream – whether precursors or post-productions – reading each individual presentation as both impressed upon and impressing upon others, more or less independently of chronological order, seeking to catch hold of some especially resonant gloss.  There is no need for “living constitution” fictions and every possibility of inter-relating constitutional documents as such with cognates – say, the Declaration of Independence, Lincoln’s several masterpieces. Cascades of Supreme Court opinions, epochal statutes, and the like.
• Literary culture, we know, coexists provocatively (overlaps) popular culture.  Influences – either way – may be both oblique and real.  (We all remember, don’t we, Meryl Streep’s oration on blue sweaters in Devil Wore Prada?)  Highly worked, in many ways esoteric, academic and judicial constitutional readings might be understood similarly – not as opposites in some sense, but as sometimes mutually influencing, interacting constitutional streams.  The place of the great civil rights marches of the 1960s – obviously in some sense constitutional, but pretty much ignored as such in much – not all, obviously enough – academic and judicial constitutional writing – becomes clearer: as constructions, assemblies, demonstrations, among other things, of the form and function of provocation as a medium of free speech.  Influence may also run back and forth: “One person, one vote” is first of all a formula encoding a notably complex and controversial reading of section one of the Fourteenth Amendment; it becomes foundational within popular constitutional culture; by the time of Bush v. Gore it appears to have acquired a significance (resisted also, to be sure) independent of its judicial origin, now become rhetorically elemental, the constitutional equivalent of an emoticon.
• Literary reading is play, it seems.  But part of the accomplishment of Visconci and his predecessors is a demonstration that this play elaborates sometimes within highly charged political and social scenes, as acts within those scenes, as acts therefore not always without consequence.  Play looks like law – like law looks to Austin, Cover, etc.  Albion Tourgee introduces the idea of “color-blind” in a novel, carries it over into a brief, the phrase (of course) then taken over by Justice Harlan in the Plessy dissent, in the late twentieth century and even now recast as incendiary, a flash point fueling and refueling  repeatedly blooming bursts of constitutional, political, and social conflict.

Elliott Visconsi’s book provokes, offers a new background, may well change our sense of what we take for granted.  I like this book a lot.

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

Nov 30, 2009 Mark Tushnet1 comment

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.

Why does art matter to us – or at least to those of us to whom it matters? Without getting deeply into esthetic theory, Bezanson says, correctly I believe, that art matters because of its non-cognitive effects on us. (On how we think? On what we think? Does it matter which?) That observation takes us into the heart of First Amendment theory. Explaining why California couldn’t punish Paul Cohen under its disorderly conduct statute for carrying his jacket with “Fuck the Draft” on it in a state courthouse, Justice John Marshall Harlan observed that words are chosen as much for their non-cognitive force as their cognitive meaning. Regulating what Bezanson calls propositional speech because it is put in a particular way is impermissible because of the force given the proposition by the non-cognitive elements of its form. Once we give First Amendment status to non-cognitive aspects of expression, though, the ground is laid for explaining why the First Amendment places limits on the government’s power to regulate non-representational (or, as Bezanson calls it, non-propositional) art.

The ground is laid, but the edifice isn’t yet erected. We could protect propositional speech and its associated non-cognitive elements, but not art that is “merely” non-cognitive. There’s going to be a problem with that, though, which we can approach from two directions. Cohen can be taken to say that a statement’s very meaning depends on its precise combination of cognitive and non-cognitive elements: As everyone who teaches the case knows, “Fuck the Draft” says something different from “Abolish the Draft” or “À bas le draft.” Yet, if meaning depends (in part) on non-cognitive elements, it’s unclear why meaning can’t arise out of non-cognitive elements alone – that is, out of non-representational art.

And indeed, that’s what the Supreme Court has said, in laying out the second route to explaining why non-representational art is covered by the First Amendment. Bezanson discusses the Hurley case involving a decision by the organizers of Boston’s St. Patrick’s Day Parade to exclude people marching behind a banner identifying them as gays and lesbians. As Bezanson points out, it was central to the Court’s analysis that, no matter what the intentions or understandings of the organizers and the putative participants were, the organizers’ concern that observers would (mis)interpret the banner as indicating the organizers’ support for gay rights triggered the organizers’ First Amendment rights. True, the parade had propositional content, but only because and to the extent that the audience gave it that content. To put it another way, the Court understood that meaning arises from audience interpretations. And with that understanding, non-representational art must be covered by the First Amendment: “Jackson Pollock’s Blue Poles No. 11 means … to me,” and the First Amendment is off and running.

Bezanson toys with the idea that an audience-sensitive understanding of meaning implies that all meanings are, as the jargon goes, socially constructed (or, even more jargonistically, always already present). I’m pretty sure that that way lies madness – or at least a quite different approach to thinking about the First Amendment. Perhaps there’s some account under which propositions are not socially constructed but non-representational materials’ meanings are. I’m sure that some fanatical social constructionists have made the case for the social construction of mathematical equations, but I’m pretty sure that I (and most of us) would find the case unpersuasive. Move slightly away from that, and social constructionism becomes more plausible. The Origin of Species is full of metaphors that carry some weight in the argument, for example.

I’m skeptical about the possibility about developing an account that tells us where social constructionism kicks in. I’m reasonably sure that novels of all sorts – War and Peace no less than Finnegans Wake – would be on the “wrong” side of the line. S would even most representational art (think here of Edward Hicks’s “Peaceable Kingdom,” which viewers give meaning to). And so would the First Amendment. That is, if my skepticism is well-founded, if all meanings are socially constructed, the First Amendment’s meaning must be socially constructed as well. Yet, that seems to eliminate the possibility of any normative take on the First Amendment: “As it happens, we’ve managed to construct the First Amendment so that it doesn’t cover non-representational art, obscenity – and, by the way, speech critical of the government.” A social-constructionist perspective might be helpful in developing a historical account of the First Amendment’s developments or what, again in the jargon, might be called a genealogy of the First Amendment, but I’ve never understood why some people think that such genealogies provide normative guidance.

There are some common traps in discussing art and free speech. Bezanson doesn’t fall into two, but he certainly teeters on the edge of a third. The first common trap, which Bezanson avoids, I call the “one thought too many” argument after a famous argument by Bernard Williams against utilitarianism. (According to Williams, those who give a utilitarian explanation for the proposition that it’s all right to save your spouse before saving someone else in equal peril on the ground that a practice of saving spouses first maximizes utility in the long run – and, after all, “he’s my wife” – offer one thought too many: “He’s my wife” ought to be enough.) Bezanson describes the work of “currency artist” J.C.G. Boggs, who reproduces in extraordinary detail the currency in circulation in the United States and Europe, with tiny, jester-like tweaks sometimes apparent on first look, at other times revealed only on close inspection. Boggs, in short, makes counterfeit dollars. The U.S. Treasury doesn’t like that, and, according to Bezanson, has routinely seized Boggs’s works as contraband, and has successfully defended against Boggs’s efforts to force their return. If the government can’t ban Jackson Pollock’s paintings, why can it seize Boggs’s?

The “one thought too many” answer invokes the tests the Court has articulated for the application of content-neutral regulations like the laws against counterfeiting to expression: The law’s incidental impact on expression on expression must be no greater than is necessary to serve an important government interest. In the context of artistic expression, the standard example is a performance artist who inflicts real physical harm on an unwilling victim/spectator, and asserts a First Amendment defense. The artist’s defense will be rejected because the general laws against assaults and the like are content-neutral, and their incidental impact on speech is no greater than necessary, etc. But here the “one thought too many” problem arises. The performance artist’s First Amendment defense ought to be rejected as frivolous: The act was an assault, and it’s one thought too many to worry about whether the incidental effect of assault laws on expression is no greater than necessary. Similarly for Boggs’s work. You could go either way on whether applying the counterfeiting laws to Boggs’s work satisfies the “incidental effect” requirement or fails it. The point is that the argument is simply too complicated for the problem at hand. It should be easy to decide whether Boggs’s work receives constitutional protection or doesn’t, just as it’s easy to decide that the performance artist’s assault is, well, an assault.

Bezanson also avoids a second trap, which is to solve some of the problems by stipulation. The Supreme Court is particularly prone to fall this trap. According to the Court, copyright law doesn’t violate the First Amendment because it doesn’t violate the First Amendment, and its contours – fair use, transformative use, and the like – are defined in ways respectful of First Amendment values even though there’s no way that the copyright doctrines as they’ve been elaborated can be accommodated within the strict contours of basic doctrine on content-based regulation. Similarly, the Court says that truthful but misleading advertising is regulable as commercial speech because it is commercial speech. But think about why legislatures can’t regulate completely truthful speech: The First Amendment adopts a principle of anti-paternalism, so that legislatures can’t regulate speech on the ground that it will lead consumers to make decisions that aren’t in their best interest (as determined by the legislature). But wait a minute – isn’t characterizing something as “misleading” paternalist? “We know what this advertisement ‘really’ means, but the poor dumb consumer won’t figure it out, so we have to regulate on the consumer’s behalf.”

This isn’t to say that Bezanson’s proposed solution to the problems posed for the First Amendment by non-representational art is satisfactory. He says that art should be absolutely protected against government sanction, even more so than propositional speech. Although he’s not entirely clear on this, I think he means that the protection for non-representational art should be located elsewhere in the Constitution, perhaps in a robust due process clause. Some of Bezanson’s own examples – especially his recurrent reference to the fact that the Marlboro Man, once “merely” an advertisement, has become a cultural representation of the sort commonly presented in museums (think of the transformation of Renaissance altarpieces, with their depictions of patrons on the sidepieces, into museum works) – show why. One way of putting the general difficulty of assimilating non-representational art, and indeed representational art, into the Constitution is that too much art lies close to the borderline of clearly regulable expression. Performance art and Andy Warhol abut ordinary criminal law and copyright law, and we’re going to need some sensible First Amendment theory to handle the problems. No city council is actually going to prohibit the display of Calder stabiles. But officials are going to want to go after some forms of art. Highly sexualized nudity is necessary to the artistic effect of Equus, and Bezanson’s discussion of Jenkins v. Georgia shows that in a nation as large as the United States we can’t rely on the sensible discretion of enforcement officials to ensure that “serious” art will never be negatively sanctioned.

Even more, the very accounts of some fixed points in First Amendment theory – that non-cognitive effects can’t be disentangled from cognitive ones, that audience understandings of events in the world are important in evaluating whether protected speech has occurred – put the idea that we can distinguish serious art from non-serious art under pressure. Bezanson sometimes seems to think that his absolute rule is tolerable because he would apply it only to serious art. As his discussion of the regulation of dancing in strip clubs shows, the impulse to distinguish serious from non-serious is strong. It surfaces in the (I think) feigned puzzlement about the meaning of “Bong Hits 4 Jesus” in Morse v. Frederick (Chief Justice Roberts called the phrase “cryptic”), and in Justice Blackmun’s characterization of Cohen’s jacket inscription as an “immature antic.” Early on, Andy Warhol’s work wasn’t “serious” enough. Now it’s central to the study of mid-twentieth century art, full stop. Rules that purport to make important differences turn on a distinction between serious art and unserious “art” are unlikely to succeed.

At the moment I don’t have an account of art and the First Amendment that I’m fully satisfied with. (The various traps incline me to go for a theory that treats non-representational art no differently from any other form of expression, and that allows for a high degree of regulation of all forms of expression. That’s pretty radical, though, and I’m not yet prepared to offer a full defense of the position). Bezanson shows how the seemingly narrow field of non-representational art draws us into the deepest questions about the First Amendment itself.

(I think it worth noting as well that the questions arising in connection with the regulation of false statements of fact, canvassed in Paul Horwitz’s post on Schauer’s Nimmer Lecture, are intimately related to the problems Bezanson discusses.)

Eclectic Decision Theory

Oct 27, 2009 Adrian Vermeule2 comments

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.

Gilboa starts with the question “will the U.S. President six years from now be a Democrat?” (p. 8).  Who knows?  This seems a good case in which to admit that there is such a thing as genuine uncertainty, as opposed to quantifiable probabilities (risk).  If you are exceptionally self-confident and have a clear probability estimate for this example, you might try Jon Elster’s famous question whether “Norway in the year 3000 will be a democracy or a dictatorship.”  Uncertainty is real but, as Gilboa notes (p. 8), the Bayesian approach to probability that reigns in economics prohibits agents from simply confessing ignorance.  Rather the agents are constrained to provide a subjective probability for the event in question, even if only an implicit subjective probability elicited by an experimenter who offers the subject a series of bets over alternatives.

Insofar as normative decision theory is concerned – thus putting aside the massive body of positive work, in psychology and behavioral economics, on whether agents do in fact behave in a Bayesian fashion — there are at least three related problems with the Bayesian approach.  (1) In Gilboa’s words, “for many events of interest we simply do not have enough data to generate probabilities” (p. 11).  (2) Subjective probabilities, even if generated, may lack any epistemic standing or warrant.  As Cass Sunstein has been known to say, his dog Perry seems to attach subjective probabilities to various events, probabilities that are wildly off the mark.  (3) Pragmatically, even if an agent could be induced to vomit forth a subjective probability estimate about the nature of the Norwegian political regime in the year 3000, “would anyone even contemplate acting on the basis of this numerical magnitude?” (Jon Elster, Explaining Technical Change (1983), p. 199).

In light of these problems, why are so many economists (and the rationalist political scientists who adopt their methods, with a lag) wedded to the Bayesian approach?  Its basic appeal, according to Gilboa, is that it is mathematically tractable and elegant, even if it is often not true (p. 9-10).  I would merely add that the Bayesian approach makes it easier to standardize graduate training in economics and rationalist political science and easier for the average graduate of such programs to produce “results.”  In reality, however, many of these results are spurious.  The Bayesian approach makes perfect sense for some decision problems, such as searching for consumer goods in a static market, but is a misfit for other problems, such as choosing climate change policies or counterterrorism policies.

Gilboa calls the Bayesian approach an “ideological and almost religious belief” (p. 9), observes that “the popularity of the Bayesian approach in economics is an interesting sociological phenomenon” (p. 8), and says “I do not think that there exists any other field in which Bayesianism is so overwhelmingly dominant, or in which it is practiced with such generality, as in economic theory” (p. 8).  My own impression, which is worth almost nothing compared to Gilboa’s, is that the best economists have become more hospitable to genuine uncertainty in recent years, perhaps in part as a result of the implausibility or conspicuous failures of risk-based modeling in the Long-Term Capital Management debacle and in the economic collapse of 2008.  Doubtless, however, it will take a generation or so for the new open-mindedness of the best economists to spread widely within the discipline and beyond.

Gilboa’s master impulse, which pervades the paper, is to urge an eclectic approach to controversies in and about decision theory.  The eclectic theorist chooses tools and assumptions to fit the nature of the problem at hand.  This can seem opportunistic, but it is superior to the ideological cast of a great deal of work in the rationalist vein, in which the problems are stretched or trimmed so that they can be worked upon with a given tool, to which the analyst is passionately attached.  The eclectic analyst is promiscuous, even cold-hearted; she does not fall in love with any of her instruments but exploits them all indifferently, as occasion requires.  Or so I interpret Gilboa’s admirable view that “[d]ecision theory should therefore retain a degree of open-mindedness, allowing for the possibility that different models and even different basic concepts be used in different problems” (p. 28).

Other Rights

Oct 27, 2009 Pat Gudridge1 comment

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.

Lash confirms Akhil Amar.  The juxtaposition of constitutional provisions and consequent attention to their interplay is a richly rewarding mode of identifying possible models of overarching constitutional schemes.  And because Lash carefully separates his intratextual work per se from his accumulations of historical data points, it is especially easy to see how his own juxtapositions might be further multiplied – with perhaps surprising results.  In this regard, it is important to consider carefully the role that “construal” – interpretation, construction, reading, etc. – plays in Lash’s argument.  The Ninth Amendment is understood as describing an approach to interpretation that, when coupled with the idea of collective rights of self government suggested by the Ninth and Tenth Amendments, grounds the larger program of restrictive reading of the rest of the Constitution.  But other constitutional provisions fix interpretative biases – not just the Eleventh Amendment (as Lash notes) but also the Fourteenth Amendment, for example.  Professor Amar, of course, famously argues that the Fourteenth Amendment prompts a rereading of the Bill of Rights as a possible sometime specification of privilege or immunities of national citizenship, privileges or immunities now enforceable against state governments.

But the amendment’s due process and equal protection clauses also oblige state officials to assess the content of state law through constitutionally supplied interpretive lenses – “due process” and “equal protection” – that mark as problematic departures from usual emphases or priorities or gaps in otherwise encompassing schemes specifying rights and duties and the like.  These departures or gaps may be the result of the failure of state officials to take seriously federal constitutional or statutory commitments (in this regard the Fourteenth Amendment clauses echo the Supremacy Clause) or shortfalls may originate in failure to carry through commitments owing to state law itself.  In this regard, therefore, the Fourteenth Amendment due process and equal protection clauses are themselves versions of Lash’s “other rights” strictures – but now exhorting interpreters of state law.  These officials must read state law in ways that give force to federal law and to their own law itself along lines suggested by the Fourteenth Amendment provisions, in the process therefore giving those provisions themselves sufficient weight.  Any reading of the Fourteenth Amendment, as a result, must begin Lash-like with the interpretive project that the amendment poses for state officials, and therefore also must necessarily specify the substance of the concerns that the amendment would have officials take seriously.  This specification will in turn fix the relationship of the Ninth, Tenth, and Fourteenth Amendments.  The space left for “other rights” – and thus the legislative jurisdiction (as it were) left to self government – will be residual: whatever organization of rights and duties (or the like) that does not fall within Fourteenth Amendment due process and equal protection concerns.

This conclusion is perhaps consistent with Kurt Lash’s own account and at least some of the Supreme Court thinking he highlights.  The idea that the Fourteenth Amendment, where pertinent, sets aside ordinary constitutional expectations was, of course, an early contribution of Justice Rehnquist’s, and the Supreme Court’s later debates about congressional power to enforce the Fourteenth Amendment often quickly moved from musings regarding federalism as such to considerations of the substance – as the Court understood it – of due process and equal protection norms.  Now-Chief Justice Rehnquist once more figured prominently.  But if we add to the mix the Article VI Supremacy Clause (not much considered in Professor Lash’s own discussion), another interpretive point of departure emerges. “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”  State judges, plainly, must read state law with an eye to the content of federal law, and seek to avoid conflicts either by restrictively interpreting the content of state law or by simply treating state law as inapplicable insofar as it overlaps federal law.  The Ninth Amendment, as Lash understands it, is not inconsistent – it simply obliges interpreters of federal constitutional grants of legislative power to avoid overly broad readings.  But this means – for Ninth Amendment purposes just as for Supremacy Clause purposes – the first order of business must be arriving at some sense of what are the concerns prompting the Constitution’s affirmative extensions of legislative authority.  Neither the state judicial work of avoiding conflict nor the Ninth Amendment work of avoiding overbreadth can start without this analytically prior inquiry.  The Ninth (and also Tenth) Amendment analysis is therefore once more derivative.

Constitutional interpretation, Kurt Lash reminds us, is crucially bound up with the question of which constitutional provisions will be treated as shaping the reading of which others.  We knew that already, no doubt.  But his particular demonstration of the results that appear to follow if the Ninth and Tenth Amendments are read together is a tour de force.  Of course, within the larger project, including not only juxtapositions but also determinations of precedence within and across juxtapositions, interplay becomes also a show of force.  Lash’s own effort works by surprise – we are struck by how large an impact substantively his austere reading of the Ninth Amendment proves to have given only a few subsequent steps.  But other arrangements of constitutional provisions might draw upon other reactions, other interpretive stimulations – horror, suspicion; alternatively, a sense of decency, fellow-feeling, justice; ultimately, perhaps, a sense of resolve.  It is the great virtue of Lash’s analysis that it is provocative not only in its immediate conclusions, but in the glimpse it affords of its variants – it is itself irreducibly multiple.

Meet the Editors

Oct 26, 2009 Michael Froomkin

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

Contributing Editors

Contributing Editors agree to write at least one jot for Jotwell each year.

Professor Randy E. Barnett
Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center

Professor Rebecca Brown
Newton Professor of Constitutional Law at the University of Southern California Law

Professor Barry Friedman
New York University School of Law

Professor Heather Gerken
J. Skelly Wright Professor of Law at Yale Law School

Professor Paul Horwitz
The University of Alabama School of Law

Professor Vicki C. Jackson
Associate Dean (Transnational Legal Studies);
Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center

Professor Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair
at the University of Texas at Austin School of Law

Professor Louis Michael Seidman
Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center

Professor Mark Tushnet
William Nelson Cromwell Professor of Law at Harvard Law School

Professor Adrian Vermeule
John H. Watson, Jr. Professor of Law at Harvard Law School

Jotwell Mission Statement

Oct 19, 2009 Michael Froomkin1 comment

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.

Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.

A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.

The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.

Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.

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Jotwell will be organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, will be managed by a pair of Section Editors who will have independent editorial control over that section. The Section Editors will also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors will commit to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section on a fixed day every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication. Our initial sections will cover administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, legal profession, and tax law — and we intend to add new sections when there is interest in doing so.

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