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SSRN Author: Lawrence B. Solum



Lawrence B. Solum SSRN Content



Published: Thu, 07 Sep 2017 02:06:50 GMT

Last Build Date: Thu, 07 Sep 2017 02:06:50 GMT

 



REVISION: Procedural Justice

Wed, 06 Sep 2017 18:06:11 GMT

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is ...



REVISION: Virtue as the End of Law: An Aretaic Theory of Legislation

Wed, 06 Sep 2017 17:57:58 GMT

This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law. The paper argues for a Neo-Aristotelian conception of human flourishing as a life of social and rational activities that express the human excellences or virtues. Because a flourishing life requires the acquisition, maintenance, and expression of the virtues, their promotion is the characteristic goal of legislation. The law can promote the virtues in a variety of ways, including: (1) by fostering peace and prosperity, (2) by encouraging stable and nurturing families, and (3) by creating opportunities for the meaningful work and play. Taking virtue as the end of law does not entail that legislation must require virtuous action and prohibit behavior that expresses human defects or vices. Instead, the law might pursue indirect strategies that encourage (but do not require) virtue and discourage (but do not prohibit) vice.



REVISION: Virtue as the End of Law: An Aretaic Theory of Legislation

Fri, 18 Aug 2017 04:46:58 GMT

This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law. The paper argues for a Neo-Aristotelian conception of human flourishing as a life of social and rational activities that express the human excellences or virtues. Because a flourishing life requires the acquisition, maintenance, and expression of the virtues, their promotion is the characteristic goal of legislation. The law can promote the virtues in a variety of ways, including: (1) by fostering peace and prosperity, (2) by encouraging stable and nurturing families, and (3) by creating opportunities for the meaningful work and play. Taking virtue as the end of law does not entail that legislation must require virtuous action and prohibit behavior that expresses human defects or vices. Instead, the law might pursue indirect strategies that encourage (but do not require) virtue and discourage (but do not prohibit) vice.



New: Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record

Wed, 16 Aug 2017 07:56:37 GMT

This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: (1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. (2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied. (3) The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting ...



REVISION: Originalist Methodology

Fri, 19 May 2017 09:21:48 GMT

This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology. Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for ...



New: Statement of Lawrence B. Solum: Hearings on the Nomination of the Honorable Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States

Sat, 25 Mar 2017 08:11:30 GMT

This statement addresses the nature of originalism. Originalism consists of three core ideas: (1) the original meaning of the constitutional text is its public meaning; (2) the original meaning of the text is fixed at the time the text was framed and ratified; and, (3) judges should be bound by the original meaning of the text. Much of the public discussion of originalism has focused on myths: originalism does not attempt to answer the question, "What would Madison do?," and many other charges against originalism are mythical as well. Originalism is in the mainstream of American jurisprudence historically, and originalism should be acceptable to Americans from a broad range of political orientations. The two core arguments for originalism focus on the rule of law and legitimacy.



New: The Constraint Principle: Original Meaning and Constitutional Practice

Fri, 24 Mar 2017 18:03:55 GMT

Originalism is a family of constitutional theories (almost all of which) agree that the original meaning of the constitutional text should constrain constitutional practice. Call this idea the “Constraint Principle.” Provisionally, the Constraint Principle is the claim that (at a minimum) the content of constitutional doctrine and the decision of constitutional cases should be consistent with the original meaning of the constitutional text. This principle has the implication that constitutional actors, including the Supreme Court, adopt constitutional constructions that effectively amend the Constitution. The aim of this article is to explicate and justify the Constraint Principle. Part I explores the role of the Constraint Principle in contemporary constitutional theory, answering the question “what is originalism?” and laying out the most important forms of nonoriginalism and living constitutionalism. Part II excavates the conceptual foundations of the idea of constraint and ...



REVISION: Originalist Methodology

Wed, 08 Mar 2017 05:45:52 GMT

This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology. Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for ...