Category Archives: Uncategorized
Jun 24, 2021 Katie Eyer
Jamelia Morgan,
Disability’s Fourth Amendment, 122
Colum. L. Rev. __ (forthcoming, 2022), available at
SSRN.
At the end of 2018, USA Today published a list of “normal” activities that had recently prompted calls to the police when Black people engaged in them. The list, which highlighted a series of viral incidents in which white people had wrongly called the police on Black people engaging in everyday activities, included incidents like police calls over Black people barbecuing at a park, sitting in a Starbucks, and mowing lawns. Many of these incidents rightly generated public outrage—and in some instances material consequences—for those who had wrongly sought police intervention. By presenting a list of the “normal, everyday” activities which resulted in police calls when Black people engaged in them, the story highlighted the role that racism plays in what public conduct is perceived as criminal.
Jamelia Morgan’s Disability’s Fourth Amendment invites us to go further and interrogate the ways in which “normal” itself—and associated understandings of what is “reasonable” policing—produce presumptions of criminality when mapped onto disabled “bodyminds” (a term that Morgan borrows from disability studies scholar Sami Schalk). Morgan argues that by failing to account adequately for disability, Fourth Amendment doctrine under-protects people with disabilities, subjecting them to a greater likelihood of stops, searches, seizures, and excessive force. Most troublingly, Prof. Morgan compellingly makes the case that many of the very indicia used to justify police action (including the use of force) under the Fourth Amendment overlap with physical, mental, and behavioral manifestations of disability.
Consider the example of psychiatric disabilities, which is an example that Morgan centers in her piece. A person with untreated (or even treated) schizophrenia may engage in behaviors that are non-normative, like talking to themselves and gesturing as they carry on a conversation with the voices in their head. These actions are not criminal, but when carried out in public spaces, especially wealthier or whiter public spaces, they may arouse discomfort and suspicion, leading to police contact. Upon approach by the police, such individuals are likely to respond non-normatively, including being unable or unwilling to perform the subdued compliance expected in response to police demands. But these of course are exactly the circumstances that create what Morgan, borrowing a phrase from Devon Carbado, refers to as “pathways to police violence.”
Nor is this phenomenon limited to those with psychiatric disabilities. As Morgan highlights, physical, intellectual, and developmental disabilities have also prompted police contact, suspicion, and violence across a host of circumstances. For example, consider the seminal case with which Morgan begins her piece, Graham v. Connor. Graham involved a diabetic with low blood sugar, whose behavior was perceived as suspicious and indicative of drunkenness and who was subjected to a police stop—and, ultimately, police brutality. Other examples that Morgan provides in her piece include deaf or intellectually disabled people unable to understand police commands, people with autism who act or respond in non-normative ways, and those with mobility disabilities who are subjected to excessive force. In each of these instances, disability—especially when combined with race and class bias—can prompt or exacerbate a police encounter, sometimes leading to violence and even death.
As Morgan points out, people with disabilities represent a large fraction of people killed by the police, with some estimates placing the proportion as high as 50%. As Morgan urges, these numbers ought to, but have not, prompted deeper consideration of how Fourth Amendment doctrine ought to attend to disability. Rather disability is simultaneously “hypervisible and invisible” in many of our Fourth Amendment cases—providing the setting for the factual context, but little more. Despite the very large role that disability plays in prompting and mediating police encounters, searches, seizures, and violence, there is relatively little in Fourth Amendment doctrine that seeks to ensure that the Fourth Amendment equally protects those with non-normative bodyminds. Indeed, numerous features of Fourth Amendment law, while facially neutral, almost certainly under-protect those with physical and mental disabilities. (Of course, as Morgan observes, this phenomenon is not limited to disability, but also extends to factors such as race and class, and especially the contexts in which those identities intersect.)
For example, what justifies a Terry stop based on “reasonable suspicion” is centered definitionally on what is “suspicious,” which often includes non-normative behavior or appearance which may arise from disability. Thus, “certain expressions of disability—such as flapping hands, low-affect facial expressions, pacing, lack of eye contact, and unsteadiness that may be exhibited by some autistic individuals,” could all be constructed as a basis for “reasonable suspicion.” Similarly, speech disabilities, hearing disabilities, and the responses of autistic and psychiatrically disabled individuals can also lead to a perception of “suspicious” behavior or “suspicious” responses to initial police intervention. Currently, however, Fourth Amendment doctrine not only does not prohibit such “disability profiling,” but arguably encourages it by focusing the inquiry on “unusual” or “suspicious” behaviors.
As Morgan demonstrates, disability continues to be under-protected by Fourth Amendment doctrine not just at the initial stage of police contact, but at each successive stage of police engagement. Police seizures—in which the question of whether a seizure has occurred turns on whether a “reasonable person would have believed he was not free to leave”—employ an objective standard that may obscure the profoundly different experience of a police encounter that a wheelchair user or a person with an intellectual disability may have. In consent to search cases, courts at times consider disability, but almost never find the standards for non-voluntary consent to be met—with some appearing to require intentional exploitation of disability by the police for the standard to be met. In each of these instances, the real impact that disability is likely to have on police interactions is often simply ignored in the Fourth Amendment analysis.
Perhaps most troublingly, as Morgan lays out, Fourth Amendment excessive force analyses, while often featuring disabled plaintiffs as their backdrop, have not fully accounted for the role that disability can play in generating and justifying such uses of force. As Morgan notes, many courts do “recognize and weigh disability as a factor in determining whether a particular use of force was reasonable.” But the mechanisms by which they do so “var[y] widely” and do not incorporate a full accounting of the ways that disability may be used to justify force and its escalation. Among other things, as Morgan details, under existing doctrine, disability-linked affect, appearance, and behavior are often used to “construct[] the threat” faced by the police in the first instance. Disability-linked non-normative responses to police commands and control are then often used to justify force escalation. Disability can thus both provide the basis for a “reasonable” perception of the need for the use of force and a justification for escalating that force, Combined with qualified immunity doctrine, this leads to a legal doctrine that is strongly tilted toward absolving police of responsibility for violent and even deadly responses to disability.
What could we do differently? Morgan offers a variety of suggestions for doctrinal reform, while recognizing that doctrinal reform cannot fully solve the problem of policing and disability. Most centrally, Morgan suggests that Fourth Amendment doctrine ought to explicitly grapple with disability, and disallow sequalae of disability which are not immediately dangerous as a basis for initiating or escalating police contact or use of force, while requiring disability to be considered in deciding whether searches and stops are consensual. As Morgan recognizes, it will not always be easy to disaggregate which sequalae of disability do or do not produce an immediate threat. But as she points out, this highlights what is perhaps one of the most harmful aspects of Fourth Amendment doctrine as currently constituted: its deployment of a “split second” conception of police conduct, a conception which fails to grapple with the broader structures of policing (including training, tactical, and structural factors). If there are better, non-violent, ways for police to recognize and address non-normative behavior or responses by people with disabilities, why should our constitution permit violence as the first-line “reasonable” police response?
Ultimately, the power of Morgan’s piece is to remind us that people with disabilities deserve what disabled legal scholar Jacobus tenBroek referred to as “the right to live in the world.” They do not possess such a right if their manifestations of disability can at any time become the basis for police contact, violence, and even death. Her piece imagines a Fourth Amendment doctrine that at least grapples with this important right, even if it cannot fully actualize it.
[The author of this Jot identifies as a person with a psychiatric disability, and has close family members who have experienced regular police contact as a result of their psychiatric disabilities].
Jun 7, 2021 Thomas Bennett
Time ticks away. You have one shot downfield. If you don’t score a touchdown, the game’s over. Which play should you call? A Hail Mary pass into the end zone, reducing the game’s outcome to a lone, long-shot attempt? Or perhaps a trick play—a conceit from the back of the playbook with a colorful name like flea-flicker, fumblerooski, or Statue of Liberty—requiring you to avoid a series of tackles in an unlikely bid to run the ball to victory? In other words, would you rather face nearly impossible odds once or even odds a half dozen times?
Winning review of a state criminal conviction in federal court requires a higher-stakes and less fair version of the same choice among long shots. First, a criminal defendant can appeal directly to the highest civil authority by petitioning the U.S. Supreme Court for certiorari. But these prayers for relief, like Hail Marys, most often go unanswered. Second, a defendant can petition a federal district court for a writ of habeas corpus. But like the flea-flicker or the hook-and-ladder, federal habeas involves avoiding many procedural obstacles. Finally, a defendant could choose a hybrid: file a habeas-like petition for postconviction review in state court, and hope that the Supreme Court will grant certiorari after state courts deny relief. At first blush, this hybrid approach seems to combine the challenges faced by its alternatives, because to succeed it must hurdle many procedural obstacles and then complete a desperate, Hail Mary pass. Yet in Direct Collateral Review, a dazzling tour through both postconviction doctrinal weeds and high habeas theory, Payvand Ahdout shows that this hybrid approach has promise for individual criminal defendants and the development of constitutional doctrine. There are even substantial benefits for judicial federalism, because the Supreme Court can supervise the application of federal rights in state courts without undermining the presumption of parity between federal and state trial courts.
Ambitious papers traverse pitched terrain; Ahdout’s is no exception. In arguing that direct collateral review is a viable vehicle on the rise, this paper takes on a formidable task. The conventional wisdom is that the Supreme Court reviews cases in this posture only infrequently. Justice Stevens once noted that the Court “rarely grants review at this stage … even when the application … is supported by arguably meritorious constitutional claims,” a point later endorsed by the full Court. This presumption reflects the Court’s traditional view that the intermediate posture of direct collateral review makes such cases poor vehicles for resolving contested questions of federal law.
The Court protests too much, Ahdout thinks. While it was once true that the Supreme Court disfavored direct collateral review—from 1986 until 2003, the Court took only nine such cases—that is changing. 2015 marked the break: the Court took five cases on direct collateral review that term, more than it had taken in the preceding six terms combined. The trend continued with another four cases in 2016, and three each in 2018 and 2019. So much for the presumption that the Court “rarely grants review” on this posture.
Ahdout traces this shift in the Supreme Court’s certiorari practice to developments in the two coordinate branches. Start with the legislature. Congress imposed a host of new procedural hurdles on habeas petitioners in 1996’s AEDPA. Under that law, habeas is limited to cases in which a state court has unreasonably applied clearly established federal law “as determined by the Supreme Court.” This bar has two effects, Ahdout argues. First, it robs lower federal courts of the chance to develop constitutional doctrine in habeas cases, since lower court precedent is not relevant for purposes of AEDPA. Second, and more subtly, it puts increased pressure on the Supreme Court to determine the content of clearly established federal law—because no one else may do so. In sum, federal habeas is a worse vehicle than it used to be.
The Department of Justice has played a role as well. Most cases the Supreme Court hears come from federal courts. By choosing not to contest broad applications of Supreme Court precedent in lower federal courts, DOJ and the Solicitor General can perversely insulate the Supreme Court from deciding important questions about federal rights—even as those same questions arise in state criminal proceedings. Because state criminal cases are both more numerous and comparatively poorly funded, the Supreme Court must get creative if it wants to keep setting the contours of federal rights.
Direct appeals have their own problems. Some kinds of claims—like the retroactivity of newly articulated rights under Teague v. Lane or the continuing competency of a defendant sentenced to death—can only arise on collateral review. Other critical issues, like ineffective assistance of counsel or the government’s failure to produce evidence as required by Brady v. Maryland, are more likely to arise on collateral rather than direct review, as Ahdout establishes. These developments have rendered both federal habeas review and direct appeals increasingly problematic vehicles for the Supreme Court to determine the scope of federal rights. So direct collateral review is on the rise.
Despite the doctrinal and institutional changes that have made direct collateral review a better posture for Supreme Court review, its downsides as a vehicle remain. Ahdout reviews this suite of problems—including such fundamental questions as what the standard of review should be and how generously to read summary orders issued by state courts—as a preview of issues to come. These problems, which the Court and Congress have struggled over for decades in the context of federal habeas, reflect the tensions of our system of judicial federalism.
Yet one key difference makes direct collateral review promising from the vantage point of judicial federalism. Like federal habeas, direct collateral review involves a federal court supervising the application of federal law in a state criminal proceeding. But with direct collateral review, it is the U.S. Supreme Court—not lower federal courts, which are theoretically coequal with their state counterparts—that does the supervising. There is thus no tension between deferring to state courts and ensuring the correct application of federal law.
This rich paper teaches lessons both internal and external to the criminal legal system. For those working inside the system, Ahdout offers practical advice. To improve the quality of postconviction adjudication, ensure that state habeas analogs include high-quality counsel who will preserve issues for an eventual petition for certiorari. For lawyers and defendants facing hard choices between alternative postconviction procedural paths, don’t overlook direct collateral review as a moment for meaningful federal review, but also beware of the procedural uncertainties that await. Like a football team mounting an unlikely comeback, litigants will be glad for that slim yet real hope, even as they rightly fight for much more.
From an external perspective, Ahdout describes a changing “ecosystem of collateral review.” In this ecosystem, the Supreme Court acts against constraints imposed by Congress and litigants (especially DOJ) to protect its review of state convictions. Direct collateral review offers the Supreme Court a solution to that problem because it is free of the statutory and institutional constraints that limit its alternatives. We should be glad, then, that direct collateral review is moving up in the playbook—and on the Supreme Court’s docket.
May 7, 2021 Rebecca Zietlow
The COVID crisis comes at a time of transition and peril for low wage workers, exposing and exacerbating their vulnerability under United States labor and employment law. The crisis also provides an opportunity for reimagining the state’s responsibility towards low wage workers. Even before the pandemic, in today’s gig economy an increasing number of workers lack any certainty about, and control over, their working lives. In Essentializing Labor Before, During, and After the Coronavirus Epidemic, Deepa Das Acevedo uses the COVID crisis to illustrate how the baseline at-will employment rules contribute to the precarity of the lives of low wage workers. Das Acevedo advocates rejecting the at-will doctrine to address that precarity.
In Essentializing Labor, Das Acevedo shows how the debate over who is an essential worker at the height of the COVID crisis revealed the failure of US labor law to protect the interests of low wage workers. Government measures to protect against COVID made it necessary to determine who is an “essential” worker. “Essential” workers such as medical workers, first responders, grocery store employees and food production workers were exempt from stay-at-home restrictions and could therefore keep their jobs even during the worst times of the COVID crisis.
However, being labeled an essential worker has been a double-edged sword – essential workers not only could go to work; they were often required to go to work, without sufficient measures to protect them from the disease, or risk losing their jobs. As a result, essential workers have been disproportionately likely to be infected with COVID and to die of the disease.
Arguably, essential workers (especially healthcare workers) have an obligation to society to continue to work in jobs that are essential to the health, safety, and welfare of the people. If so, however, our society has a reciprocal obligation to protect the health and safety of those workers. Yet the United States Supreme Court has repeatedly rejected claims that the government is constitutionally obliged to protect people from external harm. Thus, workers are dependent on positive law to protect them from danger in the workplace, including the danger imposed by a pandemic. Yet, as Das Acevedo explains, positive law actually increases their vulnerability.
Although the term “essential worker” has only recently become widely used, Das Acevedo explains that the term “essential labor” has long been important to US labor and employment law. During the pandemic, a worker is essential if her labor is essential to society. Before the pandemic, the determination of whether a worker was essential depended on the perspective of the employer. But neither determination is made from the perspective of the worker herself, even though the job is essential to the workers’ well-being and survival.
Das Acevedo argues that, from the workers’ perspective, all jobs are essential, not only because work is necessary for economic survival, but also because work is central to human flourishing and to one’s identity. Moreover, in the United States a job is more essential than in other western democracies. Many benefits and legal protections in this country are linked to employee status, from health insurance to anti-discrimination laws. In the emerging gig economy, workers do not enjoy even the minimal benefits that adhere to the employee status. This distinguishes the United States from other western democracies, where the state provides health care and pensions, and where legal protections apply to all workers regardless of their technical status, providing a safety net for all workers, even if they are required to do essential jobs.
Notwithstanding the fact that being an employee is even more essential to workers in our country than in other countries, U.S workers have far less job security than workers in other western democracies. Under the employee-at-will system which underlies U.S. labor and employment law, workers can be fired at any time for just about any reason. Das Acevedo argues that doing away with the at-will doctrine is an essential step towards improving the lives of low wage workers. Replacing employee at will with just cause termination rules would give workers a baseline stability and certainty that they need for their essential jobs.
Recently, scholars have begun to explore the 13th Amendment’s protection against involuntary servitude as a source of positive rights for low wage workers. Other scholars have argued that the Court should refine its 14th Amendment state action doctrine. In this article, and in all of her work on low wage gig economy workers, Das Acevedo lays the groundwork for theorizing their rights, all for all of those interested in creating a responsive state to protect vulnerable workers.
Mar 18, 2021 Mark Kende
David L. Sloss,
Information Warfare and Democratic Decay,
in Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare (forthcoming 2021), available on
SSRN.
During the rise of big tech like Facebook, Twitter, and YouTube, there has been an increase in autocratic governments. Political leaders in Hungary and Poland have used democratic constitutions to curb democracy. They have ignored the European Union’s complaints about their actions. But perhaps the most dangerous development is the information warfare carried out by Russia, China, Iran, and others with the intention of interfering with democratic elections. Some experts argue that Russia’s “organized social media manipulation” was the reason for Trump’s victory over Clinton. These countries used U.S. First Amendment values against the U.S.
Professor David Sloss is authoring a book detailing how “Chinese and Russian cybertroops” accomplish their goals, as well as the weak efforts by the U.S. social media companies to respond. These platforms have profit incentives that conflict with the need to block information warfare or disinformation campaigns. This review briefly examines the newly released first chapter of the book. What makes the book significant is that Sloss proposes a multi-national alliance and registration identification system to deter this cyber-espionage and perhaps slow the corresponding democratic erosion. The solution, however, raises serious First Amendment issues even though it may promote democracy.
The initial chapter contains charts on recent democratic deterioration, including in the U.S. Meanwhile nations like China are economically booming and increasing in power. Though Sloss declares himself a liberal internationalist, he explains that foreign agents have no part in U.S. self-government, and that they have fewer First Amendment rights. He also produces some nice turns of phrase. Whereas Clausewitz said war is politics by other means, Sloss writes that information warfare is war by political means.
Sloss therefore advocates an Alliance for Democracy—a transnational system of democratic states guaranteeing strong free speech for its members. But outsiders would have fewer speech rights. For example, their election-related messages would contain disclaimer warnings. Moreover, all social media users would have to register and identify themselves, declare their nationalities, and consent to verification. Sloss writes that this avoids content discrimination, replacing it with identity information concerning dangerous speakers.
He then addresses objections, especially privacy concerns. But he points out that the influence of fake accounts is huge anyway. Sloss is also aware that the disclaimers raise concerns. And he sees the large administrative costs. But he argues that the benefits to democracy far outweigh the horrifying costs, and that the First Amendment is not violated, though this is debatable. Certainly, Sloss should address this question in detail later in the book.
One criticism is that he does not show in these pages that social media causes less democracy. For example, social media fueled the “Arab Spring’s” democratic moments. Moreover, the 2020 U.S. Presidential election was quite safe. Yet the Sloss alliance and registration system could provide a fascinating opportunity to reduce or block the social media interference of autocracies in democratic elections. The proposal deserves examination, if the First Amendment problems can be overcome. Thus, his book could be very important.
Mar 3, 2021 Edward Rubin
Toni Massaro & Helen Norton,
Free Speech and Democracy: A Primer for 21st Century Reformers (Dec. 15, 2020), available on
SSRN.
There has been a long-standing belief that more speech produces more freedom, and that a governmental regime is democratic to the extent that governmental control of speech is minimized. Recent developments have called these beliefs into question, however. Justice Brandeis may have said that sunlight is the best of disinfectants, but Donald Trump has given disinfectants a bad name, and cast doubt as well on their metaphorical referents through his unceasing falsehoods and his flirtation with or embrace of Russian internet disinformation. He is out of office, but his shenanigans are in fact examples of much more extensive dilemma that remains with us today. In a recent article I like lots, Toni Massaro and Helen Norton confront this dilemma and offer possible responses.
The problem, as the authors note, is that speech has been weaponized by a toxic mixture of new technology and extreme partisanship. The internet in particular, as a source of information that people increasingly rely upon, is less a marketplace of ideas and more a means of inducing people to buy into defective reports and harmful attitudes, by overwhelming them with input or misleading them with subliminal messages. Instead of addressing this problem, a conservative Supreme Court has weaponized free speech doctrine by treating government efforts to regulate defective products and harmful substances as an intrusion on the free speech rights of those who sell these products and substances in the actual marketplace. By thus overlooking serious threats to speech and instituting counter-productive protections, the Court has created a serious mismatch between real dangers and existing doctrine.
Professors Massaro and Norton respond to this situation by recommending what they call “tweaks” rather than “topples” – delimited doctrinal adjustments as opposed to comprehensive revisions. Their choice is based on the incremental character of judicial reasoning and the widespread reverence for current free speech protections. In fact, I think the authors undersell their recommendations. These can certainly be implemented incrementally, but they are based on important conceptual considerations that point toward new understandings of the way speech functions in the context of our modern world.
One recommendation is to shift our speech-oriented solicitude from the rights of speakers to the rights of listeners. As Robert Post has pointed out, First Amendment doctrine depends on relationships; without listeners, speech is only noise. If one reads too much John Stuart Mill, the image of speech that one will have in mind is discussion or debate among relatively equal parties. In the modern world, however, there is an asymmetry between the two. In part, this is because speech – that is, the ability to reach listeners – costs money. In part, it is because the speech that reaches listeners makes money, either directly by influencing ordinary people in their capacity as consumers or indirectly by influencing them in their capacity as voters. The result is that the wealthy speak and ordinary people listen. Professors Massaro and Norton propose that free speech doctrine should be tweaked to provide more protection to listeners. Instead of being so solicitous of professionals’ right to speak – or not to speak on religious grounds – the doctrine should protect those who consult these professionals and want to obtain necessary, truthful information. Instead of freeing the expenditure of money from campaign finance regulation, the doctrine should recognize that the essential freedom is the ability of voters to hear each candidate’s position and reach informed judgments.
Two other recommendations that Professors Massaro and Norton advance are to rethink the scope of state action to which the Free Speech Clause applies, and to rethink the concept of neutrality that defines a good deal of its substance. Here again, the operation of the internet raises crucial questions. While the authors acknowledge the value of the autonomy that the state action doctrine provides, they question its dichotomous rigidity. Internet providers may be private for certain purposes, but their ubiquity and influence suggest that inclusiveness requirements might be imposed on them by courts. Similarly, Professors Massaro and Norton acknowledge the force of neutrality arguments, but recommend that content-sensitive regulation may be constitutionally permissible if it is designed to avoid misleading communications such as robot-generated messages that appear to come from individuals.
The example of racist speech at private universities provides a further illustration of the authors’ argument. This may be one context where the public-private dichotomy on which the state action doctrine is based breaks down, given universities’ essential role in our increasingly knowledge-based economy, the proportion of their research that is supported by government grants, and the extent to which higher education is provided by government in most Western nations. Their private status could be challenged through exceptions to state action doctrine such as entanglement or public function, but such doctrinal tweaks might well be grounded on a more basic re-evaluation of the doctrine as it applies in particular contexts such as racist speech. Regulation of racist speech is content-based, and thus not neutral, but the “Court’s sometimes platitudinous claims to neutrality are descriptively inaccurate” for many of its decisions. In this case, doctrinal tweaks allowing content-based regulation might be supported by the more general recognition that universities, by virtue of constitutional decisions and federal legislation, are communities that explicitly welcome students of different races, ethnicities and religions. In this sense, they embody particular commitments, and the speech that they allow might be regulated on the basis of those non-neutral commitments.
All of this, of course, is controversial. Professors Massaro and Norton certainly do not deny the importance of free speech or the dangers of allowing government to regulate it. They remind us, however, that legal doctrine, no matter how well-established and revered, does not justify itself but rather must be justified by the purpose that it serves. New circumstances can sunder a previously secure connection between a given doctrine and its purpose. Modern modes of communication and increasing political polarization constitute such circumstances. They demand that we rethink free speech doctrine to ensure that it continues to serve its underlying purposes.
Jan 20, 2021 Pat Gudridge
The moment is at hand. No longer self-consciously experimental, computational analysis now comes to constitutional law in an ambitious effort pursued by David Pozen, prominent in the field at Columbia; his Van Halen-like colleague Eric Talley, known especially perhaps for his law and economics theorizing and his corporate and contract law investigations – and Julian Nyarko, newly arrived at Stanford as a practicing computationalist interested first of all in contract law. Their project takes up the question of polarization and its pertinence constitutionally, an issue that has become more prominent in the past few years.
The effort at one level is straightforward. It turns out that all remarks made by members of Congress, on both the House and Senate side, dating from 1873 to 2016, now exist in a collected, computer analyzable form. What might we learn if we read all these speeches? We can’t, of course – too much to know, too much information to acquire and think through, even if we read quickly rather than carefully. Machines read too, assimilating many more documents much faster. But they read their way – sorting words, counting uses, noticing conjoint and disjoint patternings, and the like. We need to know what we know, therefore, when we read machine-reading results. Pozen, Talley, and Nyarko show us how they assembled their mechanism and the decisions they had to make in order to ready their computer for work. These decisions become a sort of pedigree.
Word frequency lists as such are not the main focus. Instead, the idea is first to check legislator vocabularies against constitutional dictionaries. These last are collections of words that count as “constitutional” terms. The word “constitution” itself and its immediate modifications like “unconstitutional” and “nonconstitutional” generate a first dictionary. Words included in the U.S. Constitution fill up a second collection. Words seemingly part of ordinary discussions of immediately constitutional terms become a third grouping. The computer is instructed to search out, accumulate, and report incidences of these constitutional usages in congressional talk.
Because the speakers’ party affiliations are known, the computer can determine within given periods whether members of one party or the other are more prone to constitutional usages, and whether given usages vary or not with party membership. Pozen, Talley, and Nyarko put together training lists of constitutional usages in recent periods in order to suggest versions of “right” and “left” groupings, tuning the lists to match very well with Republican and Democratic affiliations of speakers. These groupings are made available to the computer to predict the party affiliations of congressional members within the larger sets. This in turn allows the computer to assess degrees of orthodoxy among party members.
All this effort (and more – including comparisons with Wall Street Journal and New York Times editorial usages), all parts carefully designed, executed, and reported, allow the study to state findings concerning constitutional polarization. Especially provocatively, it appears, both Republicans and Democrats made frequent use of constitutional terms in the most recent period (not so in other ranges). But the terms differed considerably depending on party affiliation. This may be evidence, the authors suggest, of strong constitutional polarization. It is as though two ships “Peerless” pass in the night (as Professors Talley and Nyarko might have put it).
This is too terse. It is clear nonetheless that the work here is very good indeed. What should we make of it? Should we want to read exercises of this sort? Assemble them ourselves? “Might as well jump?” The great value, I think, is old-fashioned. Observing closely what this effort involves, we are driven quickly from initial skepticisms to thinking about helpful differentiations and elaborations.
First, we notice that constitutional usage is reduced to piles of words. Sorting words is good work for computers. But we “not-computers” tend to believe we proceed otherwise. Of course, “we” may not be a homogeneous set. Are members of Congress engaged in the same efforts as judges or lawyers or academics? Consider: Sometimes constitutional terms — words, sentences, passage, entire documents – are considered closely, as elements in efforts to think intensely and independently about seemingly difficult and important matters. On other occasions, constitutional terms are treated as “doctrine” – standard formulas framed as rules and exceptions or levels of scrutiny or test steps – in order maybe to achieve institutional uniformity or integrity. In other instances, terms are pretty much emoji. They communicate attitude or intensity, mark normative postures, stand up or stand down (we might say).
All three modes are sometimes apt. But in different settings each might be more or less salient. We might imagine members of Congress who think hard and originally about basic constitutional questions. Regrettably, John C. Calhoun comes to mind. Bruce Ackerman suggested that the remarks of Hubert Humphrey and Everett Dirksen in the course of congressional discussion of the Civil Rights Act of 1964 should rank high. Often, it is easy to suppose, legislators proceed within established doctrinal fences. Or—maybe even more frequently—they use constitutional references and resonances to signal stances, to evoke ideological allegiances and intensities – to cast “emojis” as though fly fishing. This last use is formally a kind of mirroring or borrowing, or maybe translation, of attitudes or commitments or aversions already in play in society at large. These captures may be politically sharply relevant – and if reused often enough may become constitutional content by association. Effective trademarking maybe, purposefully derivative, these constitutional cartoons are in themselves neither analyses nor close “doctrinal” maps. But none of these three modes are, in any general way, inappropriate.
Second, we also readily recognize that polarization might be pictured from a dramatically different angle. It is not surprising if political parties understand their own agendas in differing, sharply distinct terms. We remember 1800 and its very hard hardball. “Popular sovereignty” and “freedom national” were at bottom opposing constitutional notions in the 1850s, ultimately fiercely held. Cataclysm and constitutional re-grounding followed, we know, unresolved controversies were renewed within new terms, fought in new ways even now.
It is also plausible to think that some polarizations involve refusals to recognize new constitutional understandings as constitutional at all. The dramatic devices of the sit-in sparked civil rights movement often found only awkward constitutional protection, and opponents (notably, otherwise low-key Lewis Powell) denounced that movement as anti-legal and best forgotten. We remember John Lewis well as an individual, bravely hard-headed. But he is less often celebrated as one participant among many other animators of a remarkable democratic leviathan.
We know all this, of course. We worry whether we ought to be able to take steps – discover our inner Henry Clay, as it were – to manage constitutional crises in advance of full out collision. Pozen, Talley, and Nyarko offer us a diagnostic device. The groupings of constitutional dictionary entries they are able to discern are accumulations of instances. These gatherings might be useful preliminaries if we try to impute interior thematics. This is work on our part, not the computer’s. These thematics are the jurisprudential equivalents of literary criticism, plainly not themselves computational, but rather re-visioning computational heaps as harbingers, maybe pointing to Dworkin-like enterprises in the end.
Against this backdrop, we remember Eric Talley earlier on. Writing with Ian Ayres, Talley restated the notion of Solomonic bargains as a question of dividing entitlements, suggesting that such divisions ex ante — more precisely, our responses to them – sometimes worked later to facilitate improving rearrangements. The beginnings of bargaining begin in the disorganization of law. Arbitrageurs read jurisprudence. This article continues to reward close study (not just snap-shot sloganeering) – maybe especially as constitutional analysis one-step disguised. For present purposes: Sometimes as we judge congressional constitutional polarizations, we may search out possible cut constitutional or other legal entitlements as building blocks and begin to sketch bargaining paths as responses. Computational mechanics looks to be part of the beginning stuff of law itself, a first lens in recognizing structural breaks and bends and thus potential rapprochements. Sometimes, anyway. In other instances, the cut entitlement will look to be profound, its remedy not necessarily some sutured recombination.
Not only congressional remarks: constitutions, statutes, judicial opinions, all the rest – these are just words, aggregates and arrangements open to study. Computational analytics frame the window, plot paths into and around or through legal complexities we otherwise see as dense to the point of darkness. Pozen, Talley, and Nyarko touch down on law’s documentary substrate. This is law-at-first they are writing.
