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Preview: Balkinization


Balkinization an unanticipated consequence of Jack M. Balkin

Updated: 2018-04-21T20:57:44.770-04:00


Presidential Impeachment in Partisan Times


I’ve posted an essay, “Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change” to SSRN.  The argument of the essay runs as follows.  The unconventional presidency of Donald Trump has made presidential impeachment once again an issue of national concern.  But do legal academics have a good grasp on what happened in past presidential impeachments with respect to the meaning of the constitutional standard (“high crimes and misdemeanors”)?  In this essay, I argue that prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton.  The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change. 

Impeachment scholarship has been predominantly originalist.  There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.”  The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses.  Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law.  Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different.  Contrary to prior legal scholarship, I argue that due to the rise of organized political parties, a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

I then use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.”  The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of “developmental” analysis.  Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments.  These baselines then form the new context going forward for evaluating the constitutionality of official action.

The Trump Amendment


I am currently writing an article about the ongoing effort to revive the proposed Equal Rights Amendment to the Constitution. Last year, Nevada ratified the ERA. Nevada's argument was that although the ratification deadline imposed by Congress for the ERA expired in 1982, Congress can waive that requirement and declare the amendment part of the Constitution if and when 3/4ths of the states ratify. My tentative conclusion is that this argument is correct, though the fact that some states rescinded their ratifications in the 1970s complicates the question of how we will know when three-fourths of the states have ratified.

Initially, I wondered whether I should write a law review article on this, as the question can be seen as hypothetical. Yesterday, however, the Illinois Senate voted to ratify the ERA. Resolutions to do the same are now pending in the Illinois House and in other state legislatures. As a result, I'm working away on the draft with all deliberate speed.

It is hard to avoid the thought that the revived interest in the ERA is, in part, a backlash against the actions of our current President, now supplemented by the #MeToo movement. The ERA as part of the Constitution would be an ironic result of the Trump Presidency, to say the least.

UPDATE (April 20): The New York Times has an editorial in today's edition on the ERA entitled "A Rebuke to Trump, A Century in the Making." Perhaps they were inspired by my post.

The real cost of Masterpiece: It’s personal.


Paul SmithLots of people, when they hear about the Masterpiece Cakeshop case being considered by the Supreme Court, tend to sympathize with the shop owner who believes he shouldn’t have to sell one of his wedding cakes to a same-sex couple, despite Colorado’s law banning such sexual orientation discrimination.  After all, he seems like a sincere person trying to live according to his own religious beliefs.  And why can’t the same sex couples of Denver buy their wedding cakes somewhere else?However as a gay person I see fundamental problems with that approach, and most of the members of our community I’ve spoken to agree.  Why? In part, of course, it’s because we will bear the brunt of the harm if the Supreme Court says it’s ok for a retail business owner to follow his own beliefs when they conflict with anti-discrimination protections.  But it’s more than that.  Because of our life experience, we know the real cost of living in a place where we might be refused if we walk into a business and ask for service simply because of who we are.Like just about every gay person, I grew up struggling to accept my own nature, ashamed and afraid of rejection and humiliation.  That stage of life passes for most, as it did for me.  But even now, long past the difficult process of coming out, questions of how to relate to the broader world can be a part of daily life.  There remains a need to make judgments – often every day – about how “out” to be in a given situation.  Nearly everyone in the gay community knows what I mean.  At work, you are meeting a new colleague or client.  Do you reveal yourself?  You’re walking down the street on a sunny day.  Do you hold hands with your spouse?  For most of us, even in today’s relatively enlightened times, to be gay or lesbian (or bisexual or transgender for that matter) is to go through life making decisions multiple times a day about how to relate to those we encounter, weighing the value of honesty against the risk of rejection or even violence.   That I have the option to avoid revelation makes my experience different, of course, from that of racial minorities or women who also encounter discrimination more frequently than we like to suppose.   But the stress of the constant decision-making is itself wearing. In those states that ban sexual orientation discrimination by stores and other places of public accommodation, at least we have the comfort of knowing we will not be sent away for being who we are.  Sure, we may still have to deal with the hotel clerk who cannot understand why I and my husband are sharing a room or why we don’t want two beds.  But we’ll get to check in, and thereafter we’ll be treated with respect.  And that is a great reassurance.That reassurance will go away, though, if the Court recognizes the right of a business owner to refuse service to us based on religious or moral disapproval of gay people.  No matter how “out and proud” one may be, there is still lurking in the background the experience of struggle to get there, and there is still the daily navigation of the world choosing when or whether to be visibly who you are.  And that question becomes even more fraught if there is a risk, every time we walk into a business, that we will be sent away, judged morally unworthy by the person whose goods or services we were just trying to buy — or if, as the Justice Department told the Supreme Court, businesses have a right to post signs in shop windows saying “same-sex couples not served”. People in this country have every right to personally disapprove of my marriage.  But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop.  They can choose who to associate with in their private lives.  But not when they open a business serving the public.  That is where we h[...]

Intermediary Immunity and Discriminatory Designs


Section 230 of the Communications Decency Act of 1996 is widely credited with helping free expression flourish online.  With limited exceptions, internet service providers, social networking sites, and other online intermediaries are protected under Section 230 against state civil and criminal claims for the third-party content they host.  This immunity has allowed intermediaries to publish enormous volumes of speech.  Yet in so doing, it has arguably shaped the development of the public sphere in problematic ways—subsidizing digital platforms over analog ones, rewarding reliance on user-generated rather than employee-generated content, and allowing website operators to avoid internalizing many of the social costs of the materials they disseminate.  Without the expansive immunity granted by Section 230, the internet might not have become the remarkably rich discursive domain that it is today.  It also might not be quite so saturated with racist, misogynistic, defamatory, fraudulent, and otherwise harmful speech. That, at least, is the premise of Olivier Sylvain’s new paper on “Discriminatory Designs on User Data.”  Sylvain worries that Section 230 doctrine has drifted away from the goal of encouraging intermediaries to clean up the tortious and discriminatory content on their sites, and that the human costs of this immunity regime have been borne disproportionately by women and by racial and ethnic minorities who are subject to myriad forms of online mistreatment and abuse.  Sylvain calls attention, in particular, to the ways in which intermediaries’ interface design features may enable or elicit such behaviors.  Airbnb’s requirement that users share racially suggestive profile information, for example, resulted in widespread racial discrimination by its hosts.  Civil rights groups have alleged that Facebook’s marketing categories allow advertisers to exclude protected groups in contravention of fair housing statutes. Although he does not go into detail, Sylvain suggests that intermediaries that knowingly or negligently facilitate the distribution of unlawful content should not benefit from Section 230 immunity, at least when violations of civil rights laws are at issue.  Critics of this proposal will worry about chilling effects on lawful speech.  But Sylvain maintains that the status quo already chills lawful speech—the speech of members of vulnerable groups—and that a more nuanced approach to intermediary liability could bring internet law into greater harmony with anti-discrimination norms while increasing the vitality and diversity of online expression.  One way to read Sylvain’s paper, then, is as a brief against the fatalistic claim that intermediary immunity simply cannot be reined in without destroying the dynamism of the internet.Sylvain’s argument will evoke, for many readers, the pioneering work of Danielle Citron highlighting law’s complicity in the proliferation of hateful and illicit internet speech, from cyberbullying to revenge pornography.  Responding to Sylvain’s paper, Citron embraceshis critique of current doctrine and his contention that “platforms should not enjoy immunity from liability for their architectural choices that violate anti-discrimination laws.”  Although she agrees with Sylvain that Section 230 can be read in this way, Citron proposes a statutory revision that would condition intermediaries’ immunity on their compliance with a reasonable standard of care to prevent or address unlawful behaviors.James Grimmelmann points out that any intermediary liability rule is likely to be over- or under-inclusive (or both).  Without robust immunity, intermediaries can be expected to suppress some “good” speech by third parties; with immunity, they will fail to suppress some “bad” speech.  How to weigh these different sorts of mistakes, Grimmelmann explains, depends not only on one’s view of their[...]

Some thoughts after reading two contributions to the Marquette symposium on legal scholarship


My kids say that they’re going to have “It’s Complicated” engraved on my gravestone. That’s why I don’t tweet (and often have misgivings about blogging). I suspect that the only way to “promote reasoned debate” on Twitter is to point out some complexities that other Tweeters have overlooked – which probably would come across either as snark or as trolling. My guess is that “Yes but” isn’t likely to get many retweets.Another thought was that lots of legal scholarship consists of throwing stuff out there and seeing what catches hold. And, in that mode, maybe the stuff doesn’t have to be fully developed (a point relevant to Paul Horwitz’s contribution). I’m thinking of the following: In 2003 I wrote an article called “Constitutional Hardball,” published in a symposium issue of the John Marshall Law Review. The idea sat there for a while without catching hold. I have several thoughts about why: It was in a symposium issue, and no one except the contributors read symposium issues. It was in the John Marshall Law Review, and no one (full stop) reads the John Marshall Law Review. And, relatively shortly after I published my article, two other articles were published in the University of Pennsylvania Law Review (a higher prestige journal), on related ideas (constitutional crises and constitutional showdowns), so when someone thought about something in the general ballpark of these concepts, they cited to those articles rather than mine. Then, over the past year my “hardball” article was (re?)discovered – to the point where it’s probably going to fall prey to the bane of citation studies, the idea that becomes common knowledge so that no one cites to the place where it was originally articulated. My point here is that maybe we can assess contributions to knowledge only retrospectively, and that “criteria” purporting to identify good scholarship today might not actually do so. Finally, Horwitz describes the standard format of a law review case note (which I think he takes, probably accurately) as a metonym for the standard law review article. Each concludes by attempting to answer the question, “What’s the normative payoff?,” and – because (aha!) it’s complicated – the answers are always inadequate. For the past several years I’ve been reading extensively in the law review literature produced during the 1930s (both pro- and anti-New Deal), and – though styles have changed – they are indistinguishable in form from contemporary law review articles and case notes. The ur-texts, I suppose, are case notes in the Harvard Law Review. In the 1930s they were a lot shorter than today’s (which have something like an eight-page limit/requirement), but the format is the same. Notably, they always end with a one-sentence normative payoff (rather than, as today, a one- or two-paragraph payoff). Here my thought is that maybe what Horwitz is describing is what constitutes legal scholarship, and if so perhaps his criticisms of it as falling short of scholarly ideals might be misplaced. He asks for “candor” and “integrity,” but maybe those ideas have to be indexed to the field – that is, maybe what we should be looking for is “candor as understood within the field of legal scholarship,” and similarly “integrity as so understood.” And it might be that there’s quite a lot of that rattling around.[...]

The Multiple Uses of Justice Scalia


Calvin TerBeekShortly after President Clinton’s 1996 re-election, an originalist law professor took to the pages of National Review (NR) to propose that Justice Scalia run for president on the Republican ticket in 2000. “No one else of prominence in America’s public life,” wrote John McGinnis, “makes the case for conservatism better than Scalia.” Scalia was “a matchless expositor of laissez-faire economics, and yet no can doubt that he believes as intensely in social conservatism . . . .” Put differently, Candidate Scalia would be able to uniquely appeal “to social and economic conservatives and make the case for constitutional reform.”It may be difficult to remember now—especially in the wave of writings following Scalia’s death tightly tying his legacy to originalism and textualism—but as late as December 1996, Scalia, even among conservatives, had yet to emerge as the public face of originalism. In addition to McGinnis’s piece urging Scalia as “the perfect messenger for fundamental rightward political change,” NR writers portrayed the justice as an important conservative voice rather than a champion for originalism. The editors wrote: “as Justice Scalia has been valiantly pointing out in recent dissenting opinions, Supreme Court justices serve primarily as the mirror and mouthpiece of current elite opinion.” At about the same time, law professor David Forte penned an essay for NR painting Scalia in messianic terms:The prophetic role of Justice Scalia is to speak to the age, as is the role of all prophets. He speaks less to his own—the courts and the legal fraternity—and more to those in other parts of our political system. He casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives. His words are on the edge of the apocalyptic; If the Republic is to stand, the Republic must take heed.And even when specific Scalia judicial opinions were referenced, NR’s writers praised him for “subjecting [Justice Kennedy’s Romer v. Evans opinion] to appropriate scorn in a withering dissent of the type to which Court watchers have become too accustomed from him. (It’s practically an art form.).” Or, after Lee v. Weisman, NR heaped praise upon the justice for recognizing “the loss of secular prayer on public occasions” as the “loss of a ‘unifying mechanism’ in American life.”This can be understood as the early- to mid-career “constitutive story” about Scalia—a party-unifying conservative prophet warning that the country was in secular decline as the implicitly counter-majoritarian intellectual elites ignored the “original Constitution” to enact an illegitimate social agenda. This is not to say that Scalia and constitutional interpretation were never linked together, but the focus of the intellectual debate over the Constitution in NR—the bellwether of conservatism—was Robert Bork’s defense of originalism and Harry Jaffa, a Staussian, defending “Declarationism.” In short, Scalia was “useful,” but for different reasons than one might have thought. Thus, despite attempts by originalists and conservative commentators to create a linear, teleological story about the concomitant rise of Scalia and originalism since the mid-1980s, until the late 1990s (A Matter of Interpretation was not published until 1997 and was excerpted in NR), Scalia was better understood, outside the law schools (and perhaps even within), as a political entrepreneur on behalf of conservatism.In the two years since his death, Scalia’s legacy is being constructed anew by law professors, conservative commentators, conservative judges, former law clerks, even family members. This process of course was long in the making. As Scalia moved his evangelizing for originalism into higher-salience venues—he had long b[...]

Solum on Pedantic Originalism


In the spirit of the day, and in homage to the master, I thought I would share a new paper that may be of interest.  Deepening his foundational work and refining some of its core claims, Lawrence B. Solum (Georgetown University Law Center) has posted Pedantic Originalism (unpublished monograph) on SSRN.  Here is the abstract:   Pedantic originalism is a theory of constitutional meaning that aims, through meticulous philosophical analysis, to (1) clarify the role of original meaning in constitutional interpretation, (2) ground originalist inquiry in the pragmatics of natural language, and (3) reorient constitutional debate away from contentious normative questions and toward more congenial topics in legal semantics.After a brief introduction, Part I (pp. 56-93) describes the fixation thesis, which asserts that the communicative content of a constitutional provision is fixed at the time the provision is framed and ratified.  Where the Constitution uses “he,” it should accordingly be interpreted as “he or she” except when the framers and ratifiers really did have males in mind; in such instances, the principle of tough luck controls.Part II (pp. 94-169) describes the contribution thesis, which asserts that the linguistic meaning of the constitutional text makes a contribution to constitutional doctrine.  It will often be difficult to say exactly what sort of contribution, but certainly an influence greater than zero can be assumed. Part III (pp. 170-257) describes the fidelity thesis, which asserts that those who deny the contribution thesis reveal themselves to be unfaithful citizens.  Whether or not this conclusion extends to those who deny even a generalized version of the fixation thesis depends on whether such persons are deemed to have the capacity for rational thought.Part IV (pp. 258-305) tells the story of originalism’s theoretical development.  Consistent with the demands of interpretive charity and narrative economy, it stipulates that originalism emerged autochthonously from the search for truth within the legal academy.Part V (pp. 306-393) takes up the issue of liability for “accidents” that occur in the construction zone, where the linguistic meaning of the constitutional text underdetermines results.  Responding to Jack Balkin’s work on abortion and original understandings, it introduces the concept of an originalism bullshit detector to police this zone, as well as the concept of excommunication from San Diego as the key sanctioning mechanism.Finally, Part VI (pp. 394-486) responds to objections that originalism is anathema to democratic self-rule and an elegy to patriarchy and white supremacy.  The Gricean theory of implicature, it is explained, renders such objections beside the point.[...]



I have just finished reading Harvard Prof. Noah Feldman's remarkable book on James Madison.  It deserves a wide readership.  It is extremely well-written and full of insights.  As the title suggests, it focuses on three facets of Madison's career, his role as one of at the chief designers of the U.S. Constitution (the "genius"); an important originator of the American party system (the "partisan"); and then America's first war-time president.  The first part is likely to be least surprising to most con law buffs, though it certainly tells the story very well.  Madison may have been the "father of the Constitution," but he was a distinctly disappointed parent, given that at that stage of his life he, like Hamilton, really disdained the states and wished an even more "consolidated" government than the one achieved in Philadelphia.  And, importantly (and correctly), he despised the allocation of voting power in the United States Senate.  Where the book really shines, at least for me, was in the second two-thirds of the book. Feldman convincingly demonstrates that Madison did not simply disagree with Hamilton (his erstwhile close friend and co-author of The Federalist), but, in an almost Schmittian way, identified him as an "enemy" of the Constitution who had to be organized against and defeated.  This is distinctly different from Madison's views toward many others, including Edmund Randolph and James Monroe, with whom he disagreed but always in a spirit of fraternity and the belief that friends could differ but still remain cordial to one another because, after all, they were properly motivated by devotion to the common good (as envisioned by Madison).  As Feldman argues, the kinds of "polarization" we see today is baked into Madison's theory of the necessity for political parties, for if one defends the necessity to organize a political party as based on the fact that one's opponents are a "faction," defined by commitment to private interests rather than the common good, then the only proper response is political warfare.  So we immediately get, among other things, the Federalist Midnight Judges and then the Jeffersonian purge of most of those judges. Steven Levitsky and Daniel Ziblatt in their important (albeit flawed) book on How Democracies Die emphasize the necessity for toleration of one's opponents and a willingness to engage in "forbearance" with regard to the complex plurality of contending groups in American polities.  It is not that Madison was always rigid; he certainly engaged in more than enough forbearance of slavery (being a slaveowner himself), and he ultimately was willing to accept the dreadful compromise regarding the Senate rather than risk failure of the Philadelphia project.  But he defined Hamilton as different.  Feldman makes the brilliant point that the difference between the two is that Madison put his primary reliance on formal structures of constitutions (though not on "parchment barriers" devoted to rights), whereas Hamilton believed that what was most crucial was developing an alliance between the propertied and the state, so that the former would have incentives to support the latter.  Thus the importance, say, of the Bank of the U.S. and assumption of state debts. Feldman also does an exceptional job of delineating Madison's "republican" approach to foreign policy, which gave priority to economic challenges such as embargoes or 'non-intercourse" acts, as against military warfare.  That strategy obviously failed with regard to the UK, which generated the fiasco of the War of 1812.  Feldman is surprisingly generous in his account of Madison as a wartime president, though he emphasizes also that the cabinet was full of incompetents, and Madison himself obviously had no military experience or particular acumen as commander-in-ch[...]

The Administration is Lying About the Census


The Commerce Department has announced that it is adding a question about citizenship to the 2020 Census, for the first time in seventy years.  There has been a lot of speculation about possible political motivations for this action.  It is difficult to know exactly what motivates government actors whose deliberations are not public.  But it is possible to know one thing: the government’s sole stated reason for adding the question—improving enforcement of Section 2 of the Voting Rights Act (VRA)—is false.  It is not the real reason. “Lying” is a strong word.  Many falsehoods are based on mistakes, confusion, carelessness, wishful thinking, and so on.  But today’s situation puts me in mind of an evidentiary pattern that arises constantly in employment discrimination law: The plaintiff thinks something nefarious has occurred, but has no direct proof; the defendant offers a legitimate, non-discriminatory reason for the disputed action; all the plaintiff can prove is that the proffered reason is false.  It’s then, ordinarily, up to the jury to sort out what really happened.  But the fact that the defendant offered up a reason that was definitely false is significant.  It raises a potential (contestable) inference that it may have been a lie, covering up something the defendant could not admit.My sole aim in this post is to explain why the government’s stated reason for adding the citizenship question is false.  To understand this, you need to understand something about the role Census data plays in redistricting.  It plays two completely different roles.I. At the bottom of our law of redistricting, since the reapportionment revolution of the 1960s, we have the foundational principle of one-person-one-vote: Each district must have the same population.  The U.S. Constitution requires that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”  Crucially, it says “whole number of persons,” not citizens.  To make sure each state gets the right number of representatives, and then after that, to draw district lines within states, we need a count of all persons, and it needs to be exact.  For this, we use the Census.II. The Voting Rights Act, Section 2, prohibits racial vote dilution, which is drawing maps where members of one racial group have less of an opportunity than others to “elect representatives of their choice.”  This is a much richer and messier concept than equalizing district populations.  To some extent it involves predicting election outcomes.  We must ask questions such as: Is voting racially polarized, so that white voters vote as a bloc to defeat the representatives minority voters choose?  (Section 2 is triggered only when the answer is yes.)  We need to analyze degrees of racial polarization, rates of voter eligibility, registration, turnout, and other factors, in order to determine whether a given district is one where a given minority group of voters will, in fact, be able to “elect representatives of their choice.”  No single data source will ever provide all of the information about all of those factors.  Many of them—turnout, for instance—are epistemically impossible to predict with anything like the degree of precision that is involved in one-person-one-vote.  That is ok.  The goal is not to nail a perfect prediction of an election outcome, which would be impossible.  It’s just to determine whether or not a district gives minority voters an opportunity to elect their candidates.We use citizenship data as part of the Section 2 analysis.  Why?  Because it’s one piece of data that helps predict the future outco[...]

The Wrong Section 2


Yesterday the Commerce Department announced that a citizenship question will be included on the next census. Secretary of Commerce Wilbur Ross stated that the addition of this question would generate data that would be helpful "for determining violations of Section 2 of the Voting Rights Act," which "protects minority population voting rights." The Commerce Secretary also concluded that the concern that fewer non-citizens will respond to a census that includes a citizenship question were unfounded. Several states are considering a challenge to this proposed change. Presumably, they will argue that the decision to add a citizenship question reflects a discriminatory intent that violates the Fourteenth Amendment.

While there are many ways of assessing the Department's intent, here's one that I want to throw out there. I find it strange that a Commerce Department (responding to a DOJ request) interested in asking a citizenship question to protect voting rights would choose not to ask that question about Section 2 of the Fourteenth Amendment. If the Department really wants more information about our citizens to protect their voting rights, then the most straightforward way of doing so would be to ask how many of them were unable to vote and for what reason. There is precedent for this in the 1870 census form, as my forthcoming article explains.

The actual census question being proposed, by contrast, is uninterested in whether citizens can or cannot vote. This strikes me as a poor tool for improving voting rights, though it might be a fine way of reducing the count of non-citizens.

Mark Zuckerberg Announces that Facebook is an Information Fiduciary


Today in response to the Cambridge Analytica scandal, Facebook founder Mark Zuckerberg announced what I have long contended-- that Facebook is an information fiduciary. Indeed, along with Google, it is one of the most important information fiduciaries in our present age.Of course, Zuckerberg didn't actually use the words "information fiduciary." But he did say two things that are effectively equivalent to it.First, he said:We have a responsibility to protect your data, and if we can't then we don't deserve to serve you. I've been working to understand exactly what happened and how to make sure this doesn't happen again. In other words, because Facebook holds so much data about people, and because its operations are not transparent, people are vulnerable to how Facebook uses their data.  This means that people must trust Facebook not to abuse their confidence. Facebook's right to hold the data depends on its responsibilities not to use abuse that trust.  This is, in essence, the assumption of a fiduciary duty-- the duty not to abuse the trust that vulnerable parties must place in another who performs services for them.Examples in the pre-digital age are the duties of professionals like lawyers and doctors-- they hold sensitive personal information about their clients in order to perform services for those clients. Their clients must trust them in order so that professionals can perform these services, and hence professionals take on a duty of good faith, trustworthiness, and non-manipulation. In the same way, Facebook provides a service-- a social network-- that many people find especially valuable.  In the course of providing that service, people provide enormous amounts of data about themselves, making them (and their friends and loved ones) ever more vulnerable to Facebook.  By providing that service, Facebook takes on the responsibility not to take advantage of their vulnerability. It has a duty not to abuse their trust, and as Zuckerberg says, if the company abuses their trust, "we don't deserve to serve you."Note that Zuckerberg does not ground this duty on the specific terms of Facebook's privacy policy-- a complicated contract that few people have actually read. If the duty of trustworthiness were based wholly on the terms of the contract, then if Facebook changed the privacy policy, the duty to protect its end-users would magically vanish.Rather, Zuckerberg argues out that from 2007 onward, Facebook has changed its policies in order better to protect its end-users from abuse and manipulation. Whether this is in fact a correct account of Facebook's policies I leave to one side. The important point is that he is representing to the world at large that Facebook's aim is more than simply living up to whatever its vaguely worded privacy policy (i.e., its contract with end-users) happens to say. Rather, he argues that Facebook has a duty of trustworthiness and good faith that transcends the specific words of the privacy policy. This is a the duty of an information fiduciary.Second, describing Cambridge Analytica's misrepresentations to Facebook and its misuse of personal data for commercial purposes, Zuckerberg said: This was a breach of trust between Kogan, Cambridge Analytica and Facebook. But it was also a breach of trust between Facebook and the people who share their data with us and expect us to protect it. We need to fix that.In other words, Zuckerberg argued that Facebook had a duty to protect its end-users from abuse, not merely from its own actions, but also from the actions of those with whom it shares data. My view is that Facebook's fiduciary obligations "run with the data," so that Facebook has a duty to make sure that whenever it allows another person or business to see, view, or employ Facebook's end-users' data, t[...]

"A First Amendment for All? Free Expression in an Age of Inequality"


Readers in the New York area: The Columbia Law Review will be holding a day-long symposium this Friday, March 23, that asks how First Amendment law might be reimagined for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The panels are organized around works-in-progress by Jack Balkin, Catherine Fisk, Leslie Kendrick, Genevieve Lakier, Jed Purdy, Bertrall Ross, and Mike Seidman. (Fisk’s and Seidman’s drafts are already online; all of the papers will be available in hard copy at the event.) More information about the symposium, which is cosponsored by the Knight First Amendment Institute and the Center for Constitutional Governance, can be found here. It is free and open to the public, but registration is required. [...]

Stormy Daniels and Cambridge Analytica


Mark Graber has argued that the First Amendment should protect Stormy Daniels' violation of her nondisclosure agreement with Donald Trump. I doubt that this is correct-- for reasons described below, I think her best argument sounds in contract law. But even if Mark is correct,  I want to argue in this post that there are very good reasons why the First Amendment generally does not forbid enforcement of contacts that prevent the disclosure of sensitive personal information. Most companies' privacy policies depend on this proposition. These considerations are especially important in the digital age. We should not use First Amendment doctrine to make it difficult if not impossible for governments to implement reasonable privacy protections that will prevent the disclosure and manipulation of sensitive personal information.Suppose a very rich and powerful company--let's call it Facebook--signs a contract with another person--let's call him Alexsandr Kogan. Under this contract, Facebook gives Kogan the right to harvest Facebook data about end-users, with the proviso that Kogan may not use or disclose this information for purposes other than nonprofit scientific research. Unbeknownst to Facebook, Kogan is allied with a political consulting business--let's call it Cambridge Analytica--that wants to use the data to target political advertising to people in order to benefit various conservative and Republican political candidates, including Donald Trump.Kogan breaches his agreement with Facebook, and, together with Cambridge Analytica, uses the personal data harvested from Facebook to serve targeted political ads to unsuspecting voters. The scheme is eventually revealed and many people are outraged-- at Facebook, at Kogan, at Cambridge Analytica, and especially at Donald Trump, because his campaign benefited from the ads.Now one objection to the scheme is that Cambridge Analytica is staffed by non-U.S. persons, and therefore violates campaign finance laws. This is an important issue, and that is no doubt why Robert Mueller is interested in the transaction, but I am interested in a different issue in this post.A different objection is that Facebook had a duty-- or should have had a duty--to prevent its data from being disclosed to and misused by third parties. In general, Facebook should not disclose sensitive personal data to the public, and to the extent it does disclose its data, it should carefully vet the people who are permitted to use the data, and hold them to very strict requirements for how they use the data and whom they in turn can disclose it to. In terms of my own work on digital speech, I would say that Facebook is an information fiduciary. Information fiduciaries have responsibilities to protect vulnerable end-users from manipulation and self-dealing both by the company and by those with whom the company shares their personal data.According to this objection, Facebook's policies for allowing third parties to harvest its data and use it are too lax. Facebook should have investigated Kogan more carefully. It should have monitored more carefully what he did with the data. It should have designed a system of audits to check up on third parties harvesting its data to ensure that their uses continued to be consistent with its privacy policies. It should have taken steps to prevent Kogan's work with Cambridge Analytica. Finally, once it discovered a breach of its privacy policies, it should have used every possible legal means to punish Kogan and Cambridge Analytica and get them to disgorge the information they harvested. Moreover, Kogan and Cambridge Analytica were also information fiduciaries as a result of their agreement with Facebook, because they had a duty to use the data consistent only [...]

Stormy Daniels and New York Times Co. v. Sullivan


Stormy Daniels’ effort to talk about her affair with Donald Trump is better protected by the First Amendment than contract law.  The Supreme Court in New York Times Co. v. Sullivan (1964) limited the power of states to pass tort laws that chill or suppress speech about the qualities of public officials or candidates for public office.  The specific decision in Sullivanwas that the constitutional interest in vigorous debate over the vices and virtues of public officials constitutionally outweighs the interest of those officials in suppressing negligently false speech about themselves. If the Constitution prohibits state tort laws from sanctioning negligently false statements about public officials or candidates for public office, then the same First Amendment plainly prohibits state contract law from sanctioning true statements about public officials and candidates for public office. Public officials and candidates for office should no more be able to suppress criticism of their behavior through non-disclosure agreements than they are through libel laws.Sullivan provides Stormy Daniels with a strong constitutional foundation for having her non-disclosure agreement with Donald Trump or Trump’s representatives declared judicially unenforceable.  The Supreme Court has repeatedly declared that the First Amendment primarily protects the social interest in a robust marketplace of ideas.  The Roberts Court protects the First Amendment rights of corporations because they provide ideas and information to the public, not because corporations in themselves have political rights.  State laws that sanction speech subject to a non-disclosure agreement and state laws that sanction negligently false statements both chill speech. The public interest in learning about the information being suppressed by non-disclosure agreements is clearly as great, if not greater, than the public interest in obtaining negligently false statements.  As important, no public interest supports allowing public officials or candidates for public office to buy off persons with potentially damaging information.Contracts against public policy are void, even when no one bargained for an illegal action.  Common law courts refused to enforce promises not to marry.  The Supreme Court of the United States in Shelley v. Kraemer (1948) refused to enforce an agreement among white homeowners never sell to a person of color.  Sullivan declares that public policy in the United States encourages speech about public officials and candidates for public office.  Non-disclosure agreements are inconsistent with the policy when they prevent speech on matters of vital public interest solely because that speech may place powerful people in a bad light. The alternative would allow the most affluent citizens, who already have the right to buy as much favorable speech as they wish, to buy the right to silence as much unfavorable speech as they desire.  UPDATE: Daniel Solove and Neil Richards published an excellent piece in the 2009 Columbia Law Review on when ordinary tort and contract law should be allowed to restrict speech.  They have thought far more seriously about the subject than I have (or intend to do).  I nevertheless confess that I would fine-tune their analysis of non-disclosure agreements.  I think there is a public interest in having certain conversations remain confidential, so the First Amendment does not trump what Trump tells his doctor or lawyer (or as in a Supreme Court case, a journalistic promise of confidentiality in order to receive certain information.  But I think a there is a real First Amendment problem in allowing per[...]

National Conference of Constitutional Law Scholars


Inspired by Larry Solum's efforts at live blogging scholarly conferences, I am in Tucson at the inaugural meeting of the National Conference of Constitutional Law Scholars.  This is a very good idea put together jointly by Andrew Coan (Arizona), David Schwartz (Wisconsin), and Brad Snyder (Georgetown) and funded by the University of Arizona's Rehnquist Center.  The papers I mention are available (I assume) from Andrew.  It's a great conference, with an interesting mix of scholars at different stages of their careers.  I was just listening to Aziz Huq presenting a paper on "Apparent Fault," followed by Victoria Nourse talking up a terrific paper, "Reclaiming the Constitutional Text from Originalism."  It's part of a book she is working on which I can't wait to read.  Jamal Greene is commenting.

Previously this morning, we heard a wonderful set of papers on the political process, including Tabatha Abu El-Haj's "Networking the Party," on thinking about political parties as associations, Aaron Tang rethinking how notions of political power are factored into judicial review, and Franita Tolson on how the elections clause relates to Shelby County.  Other presenters and papers included Deborah Pearlstein's "Executive Noncompliance and the Effectiveness of Legal Constraint,"  Jeffrey Schmitt on the public land clause and an excellent panel on the related ideas of animus, dignity, and special legislation featuring William Araiza, Luke Boso, and Evan Zoldan.

Just an excellent conference that amounts to a much-needed professional reaffirmation of the project of doing constitutional law and theory at this difficult time in our nation's history.

Other notable papers being presented today include Shalev Roisman on "Presidential Factfinding" (really interesting topic); Rebecca Aviel on "Revisionist Rights Talk"; Yvonne Lindgren's "Scapegoating Abortion Rights" and Yxta Murray on "The Takings Clause of Boyle Heights."  Richard Primus continues his inquiry into the enumerated powers doctrine by looking closely at the original debate over the national bank in Congress in relation to the development of Madison's views; Christopher Schmidt is currently presenting on "Section 5's Forgotten Years" (very interesting paper) and David Schwartz follows with "The Strange History of Implied Commerce Powers."  Ilan Wurman continues his intervention into originalist theory with "Constitutional Primary and Secondary Rules."  My own contribution, which I hope to post soon on SSRN, is "Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change."  Lots of great work going on advancing our understanding of the Constitution.

Explaining the Persistence of "Impure" Legal Theories


Jeremy Kessler and David PozenIn a recent post, Professor Barzun attributes to our article Working Themselves Impure the argument that when prescriptive legal theories (such as originalism, textualism, and cost-benefit analysis) persist past the point of “impurification,” they do so “because they serve as tools of professional advancement, enabling their adherents to improve their status within the relevant academic or professional community.” Our explanatory hypothesis for theory persistence is neither as narrow nor as cynical as this formulation suggests. As we discuss in the article, legal theorists and practitioners have a wide range of plausible motives for adhering to an impure theory—one that no longer serves its initial normative commitments and instead advances a set of weaker and less determinate claims.Conscious desire for professional advancement is one such motive. But our article does not place much emphasis on it, as the excerpts below reflect. Far more significant, we suspect, are practical and political considerations as well as unconscious motives traceable to ideological and institutional conditioning. The broader point here is that both the persistence of any given impure theory and the real-world effects of that persistence cannot reliably be explained without investigating the diversity of potential reasons why people would continue to endorse such a theory.From our article’s introduction:[T]he persistence of ever-more-adulterated legal theories cannot be explained by broad acceptance of their initial normative commitments, for the price of persistence is the unraveling of those commitments. When such theories endure, we can expect to find them serving interests or ideals exogenous to their stated aims. The continuing bipartisan embrace of originalism, for instance, may be bolstered by its tendency to enhance the political prestige of lawyers or the moral prestige of American nationalism. In any event, the real basis for the persistence of an adulterated prescriptive legal theory—and the real stakes of that theory’s persistence—will be only dimly illuminated by the theory itself.And from the last few pages on which Barzun focuses:[I]n light of the weaknesses of alternative explanations, the exogenous hypothesis—that highly adulterated legal theories persist because they serve interests and ideals that are not compassed by the theories themselves—strikes us as the most useful starting point for further empirical work.If this hypothesis proves correct, it would warrant an important caveat to Part V.A’s relatively optimistic take on the life cycle. To whatever extent highly adulterated theories persist because they serve interests and ideals “off the page,” such persistence will not merely recapitulate the legal and political status quo. Instead, it will subtly shift the balance of social and economic forces within the status quo. At T6 of the life cycle, some legal actors will be in a more powerful position than they were at T1, and so will be better equipped to resolve the underlying dispute on favorable terms. Recapitulating a debate about the definition and enforcement of fundamental rights through an originalist lens could influence the ultimate outcome of the debate insofar as a bipartisan embrace of originalism enhances the persuasive authority of certain lawyers—for example, those steeped in Founding era history—or links the question of rights to a certain vision of American nationalism or exceptionalism. On multiple levels, then, adulterated theories may exert disciplinary effects on the legal academy and the practice of law even[...]

The wisdom of Publius and our militarized society


In Federalist 8, Publius (in that case Alexander Hamilton) warns that failure to ratify the Constitution would lead to the almost inevitable breakup of the fragile United States (under the Articles of Confederation) and the creation of two or three independent countries.  Each of them would have to create its own armed forces.  More to the point, each of them would genuinely be consumed by fear of war and thus become steadily more militarized in its culture.  On the other hand, if we ratified the Constitution, there would be only one standing army to pay for and, more importantly, we could rest secure that we really wouldn't have to worry very much about the prospects of actual war, since we would be united internally and we'd have the "pond" of the Atlantic Ocean to protect us against against imminent invasions from European powers. Whatever one thinks of that argument's validity in 1787, it speaks to us today in a very different key:  That is, the "pond" is no longer an effective barrier, even when supplemented by the far bigger one of the Pacific Ocean.  Instead, we are terrified of an attack from North Korea some ten thousand miles away, and we have military bases literally all over the world (including, of course, South Korea, 65 years after the "armistice" that ostensibly ended the armed conflict there).  And we have become a thoroughly militarized culture, where the "defense" budget is the tail that wags the dog, seemingly immune from serious cost-cutting.  We reflexively treat everyone in the armed services as a "hero" whose service demands gratitude, unlike, say, school teachers who, especially if they are in the public schools, are increasingly treated as almost contemptible by the powers that be.What provokes these remarks is a fascinating piece in The Economist on the Parkland school shooting by Nikolas Cruz.  Not only was he not an undocumented alien or a Muslim, which one suspects was the hope of the Trump Administration; he was in fact a "veteran," so to speak, of the Junior Reserve Officers Training Corp program, funded by federal tax dollars through the Pentagon, "that provides military-style training to high-school pupils."  As the article points out, the program (or, in Brit-spelling, "programme") has become an essential recruiting tool for the Pentagon, especially in these days of low unemployment when youngsters might legitimately wonder why they should go into the armed forces rather than seek some other form of employment.  (This, of course, brings up very important questions about our move toward an "all-volunteer" army, the topic of a separate discussion).  The article notes that a disproportionate number of the programs are at schools with a greater enrollment of African-American and/or poorer students (defined by eligibility for reduced-cost lunches).  One suspects that Mr. Cruz was just the kind of person, ex ante, they were looking for. All programs are subject to failures, of course.  It is interesting, though, that no one, save the Economicst, has suggested that the ability of Mr. Cruz to pick up sharpshooting skills in the JROTC should cause us to think further about that program, as against the hysteria that leads trumpistas to advocate armed teachers and the like to guard against what is, at the end of the day, a far smaller threat than, say, the prospect of "ordinary" fire-arms accidents taking the lives or injuring children and other innocents. So the next time we see a highschooler wearing a marksmanship medal gained through the JROTC should we say "thank you for your service" or wonder [...]

Some Realism about Internal and External Points of View


Charles BarzunOrdinarily there would be little profit in writing a reply to a reply to a reply to an article, but I thought it would be useful to revisit an exchange between myself and Jeremy Kessler & David Pozen on the subject of legal theories. (For earlier installments, see their “surreply” to my Response to their article, “Working Themselves Impure: A Life Cycle Theory of Legal Theories,” which I recently learned appeared last year as a post on this blog. ) This exchange exemplifies a point I’ve made previously, namely that distinguishing between “internal” and “external” “points of view” in law and legal theory is unhelpful and often serves as a way to shield one’s arguments from criticism instead of engaging with it. The issue in this case is Kessler and Pozen’s “life-cycle” theory of the rise and fall of prescriptive legal theories. I largely agree with their descriptive claim that prescriptive legal theories (e.g., originalism, cost-benefit analysis (CBA)) often become “adulterated” over time, so that they no longer seem to serve the normative commitments that originally motivated the theory’s earliest proponents.  But K&P also make an explanatory claim.  They argue that what really explains the endurance of such theories—despite their failure to serve their original commitments—is their capacity to “serve interests and ideals that are not compassed by the theories themselves” (Working Themselves Pure, p. 1891).  That is, these theories survive because they serve as tools of professional advancement, enabling their adherents to improve their status within the relevant academic or professional community.  I questioned whether the life-cycle theory was useful for a lawyer, judge or law professor trying to assess whether a given prescriptive legal theory is worth embracing or rejecting, and I offered some reasons for skepticism.  Kessler and Pozen answer that their theory enables the curious lawyer to compare their own “external” or “exogenous” explanation of why some theory, such as originalism or CBA, has persisted over time to the “internal” explanation offered by the theory’s own proponents.  Such a lawyer will then be in a position to “make a judgment call about which is the more persuasive explanation, given her practical knowledge about the legal world.” (Some Realism, p. 4).   They accuse me of privileging an “internal point of view” that rules out asking such questions. Far from it.  I think those are precisely the right kinds of questions to ask.  I’m just skeptical that their theory helps much in answering them.  The reason is not that K&P’s life-cycle theory takes an “external” explanation of why theories endure—and is therefore insulated from an “internal” perspective of lawyer and judges.  Rather, the problem is that almost any evidence in support of the authors’ external explanations would also count as evidence of the internal explanations – namely signs of professional advancement and success in the legal and legal-academic world (e.g., law-review citations, conference invitations, judicial appointments, or whatever).  For that reason, in my view, any lawyer, judge or legal scholar who wants to decide whether to adopt a theory (such as originalism or cost-benefit analysis) would be better served by engaging with – and critiquing – the substance of the theory’s claims and assumptions.  Take the example of originalism.  The lawyer or legal scholar interested in taking st[...]

Young adults and politics


As Balkinization regulars know, my wife and I co-authored a book directed at teenagers, Fault Lines in the Constitution, that, not surprisingly, examines a variety of defects in the structures created by the Framers in 1787.  We regularly blog about the book, and our latest examines the spate of student activism following the Florida shootings.  We had earlier discussed the fact that several teenagers are running for governor in Kansas and Vermont, the only two states that don't have age requirements for that office.  The mainstream press has begun covering the Kansas election, in part because GOP officials are trying to make sure that none of the youngsters will be allowed to participate in the upcoming candidate debates.  I sometime wonder if and when anyone will start suggesting that one really shouldn't trust anyone over 30 :)  Perhaps it a mistake to assume that any age cohort, including those we usually classify as "adults," are necessarily trustworthy.  Perhaps we should actually listen to what people, including the articulate thirteen-year-old running for governor in Vermont, instead of assume that he has nothing valuable to say.I'm also taking the liberty of including an announcement by Meira Levinson about a new resource just established by a consortium of people and institutions interested in the phenomenon of student activism:New online on leading change from experienced youth activists and allies. All around the country, inspired by activists from Ferguson to Parkland, a generation of young people are considering participating in their first political action or protest. They have questions. What’s the point of a walkout? Will I get in trouble? What happens after a march?YouthInFront is a community-created online learning resource. We started by interviewing and surveying youth about their questions, and then sourced questions from adult allies and educators as well. We believed the best people to answer those questions are experienced youth activists and allies. During an 18 day sprint from Feb 13 to March 7, we interviewed nearly 30 youth activists and educators, reviewed youth-produced and youth-focused resources from around the web, and benefitted from the generous contributions of media producers, civic educators, youth activists and organizers, software engineers, and many others.The YouthInFront community is made up of individuals with diverse array of beliefs about public policy, the tactics and strategy of protest, and how adults can best and most appropriately support students. What we all agree on, though, is that youth-led civic activism can transform society for the better. Young people are powerful civic actors, and during their apprenticeship of citizenship, their voices deserve to be heard. The youth in our community are leaders; the adults in our community are supporting them as they march up front.YouthInFront was kicked off by three longtime civic educators: Justin Reich from MIT, Doug Pietrzak from Fresh Cognate, and Meira Levinson from the Harvard Graduate School of Education (HGSE). Yes, this means that YouthInFront site was planned and organized by adults – but we hope that we have used the wealth of resources at our disposal to provide a model of how adults can support youth who are leading the way. We quickly had nearly 100 volunteers from Cambridge, Boston, and across the country, and we gratefully acknowledge their many contributions.YouthInFront is supported by a wide variety of organizations, led by the Harvard Graduate Schoo[...]

Opioids and Unorthodox Civil Procedure: Will the MDL solve the crisis?


The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits.   Four hundred of them are now consolidated  before a single federal judge--Judge Dan Polster in the Northern District of Ohio--who has announced his intention to settle not only all the cases before him, but ALL the cases filed across the country, before the end of 2018.  If you didn't just say "wow," you are not reading carefully enough.  I have a forthcoming article about this litigation here.The legal animal here is multidistrict litigation, known as the "MDL."    MDLs currently occupy about a THIRD of the civil docket and yet not many lawyers or academics are familiar with them. I have previously written about MDLs as "Unorthodox Civil Procedure." They enable the consolidation of similar cases that cannot be aggregated as class actions under Rule 23; these cases are often products liability or health cases because the individuality of the harms can be fatal to the Rule 23 commonality/predominance  requirements (although many MDLs contain several class actions as well as individual cases within them). Other prominent MDLs today include the BP oil spill and the NFL concussion case. They have been around since 1968--codified at 28 U.S.C. 1407-- but it is in the last decades that they have become an exceedingly important legal tool, in no small part because of the nationalization of the economy.The opioid litigation may be the starkest example yet of the power of large MDLs and the unorthodox role the judge assumes in them. Although the MDL statute allows consolidation only for pre-trial procedures, almost all large MDLs settle in the MDL court.  This is not surprising; large MDLs are, almost by definition, intractable problems with intractable numbers.  Case-by-case resolution through formal litigation pathways could take decades and might not be worth it for attorneys.  MDL judges tend to be problem solvers, and Judge Polster is no exception. He has chided the federal and state governments for punting the problem to the courts; he has said that the crisis is to serious to proceed through traditional  litigation paces. This quote from the judge pretty much sums it up:"People aren't interested in figuring out the answer to interesting legal questions like preemption and learned intermediary, or unraveling complicated conspiracy theories… So my objective is to do something meaningful to abate this crisis and to do it in 2018. What we've got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly...We need a whole lot -- some new systems in place, and we need some treatment. We don't need -- we don't need a lot of briefs and we don't need trials. They're not going to -- none of them are -- none of those are going to solve what we've got."The array of defendants is pretty extraordinary too. The plaintiffs --who range from states, to counties, to Indian tribes, and individuals-- have cast an exceedingly broad net.  They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain--which they were--two decades ago.  Judge Polster has brought all defendants to his negotiating table--including those defendants who are not even before his cou[...]

Originalism as a Topic versus Originalism as a Theory


I have said on a number of occasions that originalism as a theory of interpretation is not widely practiced outside the United States, and that even within the United States, state judges tend not to be originalists. Nevertheless, over the years, people have pointed out, quite correctly, that this judge or that judge in another country, say Canada, or Malaysia, has made arguments that look and sound pretty originalist. There are also a very sizeable number of originalist arguments in state constitutional decisions--these happen, for example, anytime a state court interprets a recent referendum or state constitutional amendment.So what is going on? My latest article, Arguing About the Constitution: The Topics in Constitutional Interpretation, helps clear things up.The article argues that when lawyers make constitutional arguments, they use stock forms and strategies of argument, which classical rhetoric calls topoi or topics. Most people in constitutional theory know about Philip Bobbitt's famous catalog of topics, which he called "modalities."Topics give lawyers ways of analyzing legal problems and arguing about how to resolve them (hence the title, "Arguing about the Constitution"). Standard topics rest on commonplaces about what makes a constitutional argument valid and persuasive. These commonplaces are incompletely theorized-- that is, people may agree with the basic premise (for example, that arguments from purpose are valid), but they may not have thought very much about why the premise itself is valid and once they start arguing about it, they might well have different views.We can think of originalism in two different ways. The first is as a general theory of constitutional interpretation.  This is the view that the original meaning, original intention, or original understanding of the Constitution is fixed at the time of adoption, and that we should always interpret consistently with it.A second way to think of originalism is as a set of rhetorical topics, that is, a series of standard arguments that lawyers invoke whenever they think it will help them analyze a problem or persuade an audience. In American legal culture, these topics include arguments from text, purpose, structure, tradition, ethos, and so on.  For each of these topics, there are special cases--or subtopics--that focus on adoption history. These topics include arguments from the original meaning of the text, from the original understanding of the adopters, from the original intention of the framers, from the ethos of the founders, from the values of the founders, from the political tradition of the founders, and so on.The key point is that you don't have to be committed to originalism as a general theory of interpretation to use any of these originalist-style topics, anymore than you have to be a textualist to occasionally make arguments from the text, or a structuralist to occasionally make arguments about structure.That's how topics work-- they are a grab bag of generally accepted kinds of arguments that lawyers can pull out, as the need arises, to analyze a situation and persuade their audience. Lawyers can make an argument from original understanding in one case and an "non-originalist" argument from consequences in the next; indeed, they can make both arguments in the very same case.Therefore, we should expect that lawyers and judges, both in the United States and in other countries, will use originalist-style topics on occasion. They will do so whenever they think that it makes their arguments[...]

The Costs of Conscience and the Trump Contraception Rules


Nelson Tebbe, Micah Schwartzman, and Richard SchraggerWe have been arguing that the Constitution prohibits the government from accommodating religious practices when doing so entails undue hardship to third parties. That principle is both normatively justified and grounded in legal doctrine, according to work we have published here, here, here, and in several blog posts and opinion pieces. In response, critics have asked how that argument fits together with another of our convictions, namely that religion generally ought not to be treated with special solicitude in constitutional law. In a new paper, we answer that our normative arguments for the third-party harm principle also apply outside of religious beliefs and practices. In particular, government accommodation of conscience can generate costs to other citizens that raise many of the same concerns as third-party harms in the religion context. (One of us has advanced a similar argument in a separate reply to critics.)Contemporaneously, events in the world are making this argument relevant. Last October, the Trump administration issued two interim final rules that exempt employers that object to the contraception mandate. (We explained the background to those rules here.) The new rules relate closely to our new argument because they do not only exempt employers who have religious objections to the contraception mandate—they also exempt employers who have moral objections to the requirement. And because neither of these exemptions requires any accommodation of workers, they will impose burdens by stripping employees of contraception coverage without cost sharing. The Trump administration may have accommodated moral as well as religious convictions because of two cases that had been working their way through the lower courts, March for Life v. Burwell and Real Alternatives v. HHS. In these two cases, pro-life organizations brought challenges to the contraception mandate. But because the organizations were nonreligious—their objections to abortion were grounded in secular convictions—they could not take advantage of existing accommodations, which extended only to religious nonprofits. Although federal courts so far are coming out different ways in these cases (ruling for March for Life but against Real Alternatives), our point here is simply that these cases both present situations where nonreligious claims for accommodations are brought against the contraception mandate. Yet both sets of claims are grounded in conscience. Officials in the Trump administration were most likely thinking of such cases when they wrote these two interim final rules.Recently, a federal court in Pennsylvania struck down both interim final rules, and challenges to them are pending in several other courts. Although the court in Pennsylvania relied on violations of the Administrative Procedure Act, it recognized the harm to women. The court said:[The moral exemption] has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us. That cannot be right. . . . A simple hypothetical illustrates the insidious effect of the Moral Exemption Rule. It would allow an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage. And, it may do so in an effort to impose its normative construct regarding a woman's place in the world on its workforce, confident that it would find solid support for that de[...]

The Real Purpose of the Foreign Emoluments Clause


Undoubtedly you are aware that the President is being sued for allegedly violating the Foreign Emoluments Clause of the Constitution. While I do not believe that the plaintiffs in these cases have standing, the theory behind the litigation is that the President's business interests are receiving foreign benefits because of his status as President. In other words, foreign governments are trying to bribe him by staying at his hotels, renting out his properties for events, and so on. Then there is the related claim that domestic competitors are being harmed by this influence peddling (because they are not getting these sorts of bookings).

I think, though, that this analysis misses what the Foreign Emoluments Clause is meant to prevent. The true problem is that presidential business interests give foreign nations leverage over a President that could harm the national interest.

For instance, the President has just announced his intention to impose steel and aluminum tariffs. This is an incredibly stupid idea, but that's a debate for another day. One argument against the tariffs is that they will lead to a cycle of retaliation from our trading partners that will make us worse off.

If you think about it, though, there is a more logical way for these countries to proceed, They could just retaliate against the Trump Organization. According to that website, there are Trump properties in Canada, the UK, Ireland, Dubai, Indonesia, Turkey, South Korea, the Philippines, Uruguay, and India. (There are probably pending projects in other nations, though who knows.) I doubt that the President will care much about retaliatory tariffs on American goods. He will, though, care a lot about measures that directly affect his financial interests. (Just a hunch.)

The Foreign Emoluments Clause, if observed, makes this sort of threat far less powerful. In this case getting the proposed tariffs withdrawn through foreign pressure on the President's businesses would be in our national interest. But in another situation with another President that would not be the case. This is why someday I hope Congress enacts legislation to enforce the Clause effectively, though at present I see no remedy available.

Rethinking the Modalities of Constitutional Interpretation


I have posted my latest article, Arguing About the Constitution: The Topics in Constitutional Interpretation, on SSRN. Here is the abstract:Constitutional construction is the element of constitutional interpretation that implements and gives effect to the Constitution. Two features of legal practice help ensure that construction is guided by and furthers the Constitution. The first is an interpretive attitude of fidelity to the Constitution and to the constitutional project; the second is a set of techniques derived from the common law. Lawyers and politicians adapted common law techniques for construing legal texts to the U.S. Constitution once it became a legal document. American lawyers still employ descendants of these techniques today. These techniques are what classical rhetoric calls topoi or “topics” that are characteristic of American constitutional law. These topics are tools for the analysis of legal problems and for the generation of legal arguments. They involve commonplace but incompletely theorized justifications for constitutional interpretation.Constitutional topics connect the text of the Constitution to its implementation; they allow people with very different views to argue that their proposed interpretations are faithful interpretations of the Constitution and further the Constitution. The article explains the topical approach to constitutional argument and contrasts it with Philip Bobbitt’s well-known theory of “modalities” of constitutional argument. Unlike Bobbitt’s model, the topical approach is consistent with many different kinds of constitutional theories, including originalist theories.* * * * *Back in 2013, I wrote an article on how lawyers use history in constitutional interpretation: The New Originalism and the Uses of History.  I argued that lawyers channel history through existing modalities of legal argument-- that is how history gains authority in law.One difficulty I faced was that Bobbitt's famous theory of six modalities is not well designed to talk about how lawyers use history. That is because Bobbitt treated "historical argument" as a single modality, instead of something used by all modalities; and he also identified "historical argument" with arguments about original intention.This led me to propose a new list of modalities--one that allowed for the many different uses of history in constitutional argument, and that did not limit "historical argument" to adoption history or original intentions.But there were still further problems. Bobbitt's theory of the modalities was inconsistent with all forms of originalism. Yet originalists use the modalities all the time. He argued that the modalities were wholly incommensurable and that conflicts between them could only be resolved by individual conscience. But this, too, was not an accurate account of how lawyers argue.The next step, which I take in this article, is to rethink what we really mean by "modalities" of constitutional argument. In fact, the idea behind recurring forms of argument is very old; it emerged in Ancient Greek and Roman rhetoric. The current article, Arguing About the Constitution, shows what the modalities really are, why they help us expound the Constitution, how they assist in the development of constitutional doctrine, and why they are compatible with many different kinds of constitutional theories.[...]

The Interpretive Poverty of Data


Stanley Fish This brief essay was delivered as a response to a paper co-written by Justice Thomas R. Lee and James Phillips, Data Driven Originalism, at the Originalism Works-in-Progress Conference held at the University of San Diego on February 16-17, 2018.  The desire to generate human meaning by eliminating from the patterns that convey it all traces of the human is at once perennial and doomed to be ever unfulfilled. Back in the seventies there was a fast-growing sub-discipline that promised to marry linguistics and literary criticism in a way that would provide an objective basis for the interpretation of texts. It was called stylistics and I am pleased to say that I pretty much killed it by writing two essays, “What is Stylistics and Why Are They Saying Such Terrible Things About It?” and “What Is Stylistics and Why Are They Saying Such Terrible Things About it? Part Two”. In those essays I said that Stylistics failed in two respects. More often than not, the mountainous machinery it usually cranks up labors to produce something less even than a mouse; you wade through a whole lot of charts, distribution patterns, selection patterns, contiguity patterns and find waiting for you at the other end  something that would have been obvious  from the get-go to a ten year old. And, on the other hand, if at the end of the whole business there is an interpretive insight that seems novel and arresting , its relationship to the operations of the analytical machine is entirely arbitrary. Either you do all that counting and sorting and come up with a pompously inflated version of what you had at the beginning,  or you do all that counting and sorting and then attach to the resulting data an interpretation it does not generate; to be sure,   the interpretation may be one the data can be made to support,  but only because the data , just sitting there in all its empty bulk, can be made to support anything. Consider, for example the case of Louis Milic, a computational stylistician, who studied the relative frequency of initial determiners and initial connectives in the sentences of Swift, Macaulay, Addison, Gibbon and Samuel Johnson. He discovered that Swift, to a much greater degree than the other authors, began his sentences with connectives and he concluded that “The low frequency of initial determiners, taken together with the high frequency of initial connectives, makes [Swift] a writer who likes transitions and makes much of connectives”. That’s the banal fruit of the analysis. The arbitrary fruit comes a bit latter when Milic notes that it was Swift’s habit (as it is in fact mine) to extend the length of his sentences by producing a series of appositional phrases that threatens never to end.  His conclusion? Swift’s “use of series argues a fertile and well stocked mind”. Why not say that Swift’s use of series argues an empirical rather than an abstract cast of mind , or that Swift’s use of series argues an anal-retentive personality or that Swift’s use of series argues an unwillingness to let go of a thought. These and a thousand other interpretive conjectures will fit the data Milic assembles, but there is no genuinely motivated route from the data to any one of them. As a statistical output, Swift’s use of series has the status of an ink-blot in a Rorschach test. The researcher/analyst asks, what might that me[...]