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A Theory of Law for the Next Founding Generation
Get PDFAt the present moment, the greatest threat to our constitutional democracy, and perhaps to our survival as a nation, is the autocratic aspiration of a President who claims to have been saved by God to institute a new era of American imperialism and interplanetary manifest destiny. It might seem in this context, with a President issuing executive orders that aggressively invite constitutional challenge, and a Vice-President who has advocated that the President should ignore Supreme Court rulings he deems illegitimate, that arguments about constitutional legal theory could only be of theoretical interest. That would be true if our constitution were at the most fundamental level a set of rules, and questions of constitutional legality were ultimately technical legal questions of interpretation and application, best left to the professionals. Our current crisis presents us with an opportunity to shake off this dangerously passive and deeply mistaken view of ‘our Constitution.’ This Article argues that we must stop thinking of ourselves as consumers of rights, granted to us by god and our founding documents, and the courts as the final authoritative determiners of the rights bequeathed upon us by history. We must come to recognize that no one gives us our rights except ourselves acting as a self-governing political community, and that the legitimacy of our constitutional authority as a people depends upon our continuing struggle as a people to realize equality before the law. No real reform of our legal and political institutions will be possible without a more fundamental reformation in our understanding, as citizens, of the relation between constitutional legitimacy and democratic self-rule. We need to ask anew the question “What is the law?”
This Article presents a novel theory of fundamental or constitutional law, a theory which both helps to make sense of our current crisis in democratic constitutional self-governance and, we hope, can help inform strategies for responding to that crisis. We frame our account through a critique of “public meaning originalism,” the theory of legal interpretation espoused by conservative members of the Supreme Court. We show how the Roberts Court’s putative ‘textualism’ exemplifies in a radical way the dangers of the prevailing understanding of legitimate constitutional authority, both inside and outside the legal academy. This view is known in legal theory as “legal positivism.” In its standard form, legal positivism grounds the existence of constitutional law on the authoritative interpretation by legal officials (e.g., the Supreme Court) of authoritative source materials (e.g., the US Constitutional document), while also holding that the practices of those same legal officials are the grounds of both the ultimate standards of correct constitutional interpretation and of the choice of which sources count as authoritative. Very little imagination should be required to see how this account of constitutional legitimacy, which identifies fundamental law with whatever the most authoritative legal officials deem in practice to be fundamental law, could be used to justify unprecedented assertions of political power. Both the Roberts Court’s recent rulings and the President’s executive orders have relieved us of even that meager amount of imaginative work and have underscored the need for an alternative account of fundamental or constitutional law.
This Article argues that this now dominant, highly theoretical, understanding of the law’s authority represents and propagates a profound misunderstanding of what makes a constitutional legal order legitimate. A democratic constitutional order must be understood as the vehicle through which citizens enact their shared obligations to protect the individual and collective rights necessary for equal participation in democratic self-governance. Constitutional legitimacy is grounded on the real possibility of a people making use of their political and legal institutions, and their history and traditions, to reason together about the rights, duties and obligations of citizenship. Rather than abstract moral, philosophical or theological principles, constitutional principles must be understood as political principles animating the shared intention of a people to authorize a particular form of self-government. Such a shared intention can only be realized through ongoing democratic deliberation about and political inquiry into the common understanding of the political community about the scope and limits of the power of the people as sovereign over its constituent members as subjects. It is the political activity of a people, constituting themselves as a people through determining their common good, that is the ultimate foundation of constitutional law
The Common Law and First Amendment Qualified Right of Public Access to Foreign Intelligence Law
Get PDFFor millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions and records.
Like their geographic sistren, the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR), firmly situated within Article III, routinely rule on critical first, fourth, and fifth amendment questions, engage in complex statutory analysis, and adjudicate matters involving government malfeasance—all matters at the heart of the rule of law. Nevertheless, the FISCR recently determined that the FISC/R lack any jurisdiction over First Amendment right of access cases, sidestepping both common law and the inherent powers of the judiciary. Even as the Supreme Court denied the subsequent petition for certiorari, Justice Neil Gorsuch, joined in his dissent by Justice Sonia Sotomayor, raised significant concerns about the FISCR’s ruling, as well as the government’s position that the Supreme Court lacks any jurisdiction over the FISCR’s determination.
The Common Law and First Amendment Right of Public Access to Foreign Intelligence Law tackles the preeminent argument put forward in support of the FISCR determination— that because of the specialized nature of the FISC/R, they are somehow immunized from constitutional challenge—and argues that both a common law and qualified First Amendment right of access applies to FISC/R decisions.
The Article begins by providing the historical evolution of the common law right of access, as well as the First Amendment presumed right of access to judicial records and setting forth the tests applied in each realm. It elucidates the reasons undergirding the right of access and its consistent application to judicial records. The Article next turns to a handful of First Amendment right of access cases to come to the FISC and clarifies complex interplay that resulted in the petition to the Supreme Court. It then tackles the most typical cluster of counter-arguments offered in favor of denying any common law or First Amendment public right of access, starting with the government’s remarkable assertion that the proper way to obtain Article III decisions is by going through the Freedom of Information Act, which includes seven exemptions in matters of national security and is designed to give the public access to executive branch, not judicial, records. The Article then counters the argument that the sensitive nature of matters before the FISC/R and their institutional design foreclose public access, noting that they are far from unique in addressing matters of national security and that they now operate in a manner largely consistent with geographic courts. The Article concludes that while some matters may, in the future, need to be withheld from public view, insofar as matters of law, and the reasoning leading to the court’s conclusion, establish what the law is, both a common law and First Amendment right of access apply
Seeing Like a Chocolate City: Reimagining Detroit’s Future Through Its Past
Get PDFThis essay is part of an online symposium on Michelle Wilde Anderson\u27s “The Fight to Save the Town.” In it, Anderson captures how the rise and fall of Detroit maps onto so many other important cultural, political, social, and economic moments of the twentieth century. As Anderson rightly notes, many of the ways in which the city’s history is commonly told represent a “white gaze on Detroit.” What this narrative often leaves out is the critical role of the Black middle and professional class in stabilizing or holding up the city during the period often associated with the city’s decline. This Review focuses on the period roughly between 1970 and 2010. This period falls in between the well-documented “White Flight” out of the city on the heels of the 1967 riots and the less well-documented “Black Flight,” particularly of the Black middle and professional class, out of Detroit in the late twentieth century and early years of the twenty-first century.If we shift the gaze just a little to focus on what happened to the Black middle and professional class in Detroit over time, we might learn something about what held the city together for so many years—even after Whites fled to the suburbs. We would give a bit more agency to people who held the city up, culturally and economically, and who could be key to Detroit’s ability to set itself on a growth trajectory that is both prosperous and inclusive. We might imagine a future Detroit that reinvents itself through an investment in the communities and neighborhoods that helped to build and sustain cities like Detroit - so-called “chocolate cities” - in the past
Disrupting Data Cartels by Editing Wikipedia
Get PDFLegal discourse in the digital public square is driven by memoranda, motions, briefs, contracts, legislation, testimony, and judicial opinions. And as lawyers are taught from their first day of law school, the strength of these genres of legal communication is built on authority. But finding that authority often depends on a duopoly of for-profit legal research resources: Westlaw and Lexis. Although contemporary legal practice relies on these databases, they are far from ethically neutral. Not only are these “data cartels” expensive-- creating significant access to justice challenges--they also are controlled by parent companies that profit by providing information to Immigration and Customs Enforcement that is used to surveil, arrest, and deport immigrants, creating a sense of ethical unease in the colloquial sense. One way to make legal research (and by extension, legal practice) more publicly and ethically accessible is to find ways to increase the availability of alternative and supplemental options to research authority. That said, the challenge is that there are not enough free, public alternatives.
Wikipedia has the power to disrupt these data cartels and increase public access to legal information. The non-profit, publicly-funded encyclopedia that anyone can edit is already the silent first stop for many legal researchers including judges, lawyers, and the public. With expert editing by law students and junior lawyers Wikipedia could become much more than a first step. This Essay builds on the scholarly literature and multiple years of classroom experience to suggest that law students are particularly well-positioned to challenge the singular reliance on data cartels by reimagining Wikipedia\u27s place in law and legal education. Further, teaching law students how to use and maintain Wikipedia sidesteps colloquial ethical issues raised by data cartels and produces concrete benefits for students: editing Wikipedia creates substantive opportunities to investigate different genres of legal writing, allows integration of students\u27 legal research and writing skills into practice, and instills ethical service obligations and provides professional identity formation opportunities during students\u27 formative years. With proper training, law students can grow as lawyers and legal writers while also making significant and meaningful contributions to the accessibility of legal knowledge during law school and beyond by creating and editing Wikipedia articles that are free, accurate, and ethical sources of that knowledge
Integrating Lawyers Into Perinatal Care Teams to Address Unmet, Health-Harming Legal Needs
Get PDFAcross the United States, historically imposed structural, social, and environmental variables are intimately connected to poor obstetric outcomes and high maternal and infant mortality rates among Black pregnancy-capable people. Efforts to diminish the effect of these variables include integrating screening for social determinants of health during the perinatal period and treating them with social services, mental health support, and other referrals, including connections to community-based resources. Although helpful, some of these social determinants cannot be overcome without legal advocacy. Medical–legal partnerships, which integrate lawyers into health care, fill this gap. This commentary by an interprofessional team of authors relies on the experience of an established MLP. We posit that unmet legal needs of perinatal patients merit ongoing monitoring and intervention. We explain the rationale for perinatal practice medical–legal partnerships and share implementation suggestions from a high-intensity safety-net urban hospital
Differentiating Strict Products Liability’s Cost-Benefit Analysis from Negligence
Get PDFDangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of negligence enough to protect the public or is a strict liability system preferable? If a strict liability system is preferred, what system should be adopted and how can standards be set that are stricter than negligence but not overly draconian? The current strict products liability paradigm is predicated upon—at least in many courts and for certain categories of product defects—a “risk-utility” or “cost-benefit” analysis conducted by the fact-finder. While such cost-benefit form of strict liability offers flexibility, many have charged that it is really no different from ordinary negligence, which itself contemplates very similar balancing. We disagree. In this Article, we isolate a discrete decisional framework within which strict liability balancing can be situated, and we then identify and discuss five plausible standards that preserve a cost-benefit balancing, are stricter than negligence, and do not constitute absolute or excessively strict liability
Intellectual Property and “The Lost Year” of COVID-19 Deaths
Get PDFProtecting intellectual property (IP) is a question of life and death. COVID-19 vaccines, partially incentivized by IP, are estimated to have saved nearly 20 million lives worldwide during the first year of their availability in 2021. However, most of the benefits of this life-saving technology went to high- and upper-middle-income countries. Despite 10 billion vaccines being produced by the end of 2021, only 4 percent of people in low-income countries were fully vaccinated. Paradoxically, IP may also be partly responsible for hundreds of thousands of lives lost in 2021, due to an insufficient supply of vaccines and inequitable access during the critical first year of vaccine rollout, most notably in low-income countries that lacked the ability to buy or manufacture vaccines to save their populations. IP is implicated in the choked supply of COVID-19 vaccines in low-income countries, particularly during the crucial first year of the vaccines’ availability in 2021.
This Article first diagnoses how the IP system bears some blame for a “lost year” of COVID-19 deaths and devastation in 2021. While the promise of monopoly rights in breakthrough technology helps incentive life-saving innovation, holding life-saving knowledge hostage in corporate monopolies to maximize private profit has tragic consequences. This Article diagnoses a number of causes for the inequitable distribution of life-saving COVID-19 vaccines, from misguided reliance on IP rights and voluntary mechanisms to share knowledge and vaccines, to the rise of vaccine nationalism and vaccine diplomacy, to unequal global IP institutions that disenfranchise low-income countries and continue to reproduce colonial era dependency by poor countries on high-income nations’ for life-saving technologies. Ultimately, unequal access to life-saving vaccines during the COVID-19 pandemic wreaked untold havoc on human lives and the global economy. Glaring inequity in global access affected rich countries, as well, as variants emerged in poorly vaccinated parts of the world and spread worldwide, prolonging the health and economic effects of the pandemic.
In response to the diagnosis, this Article develops cures to promote a timely and equitable supply of critical medicines in the next pandemic. As the WHO draft Pandemic Treaty recognizes, there is a critical “need to establish a future pandemic prevention, preparedness and response mechanism that is not based on a charity model.” This Article suggests several reforms to prevent such inequity in the next pandemic, including delinking vaccine development that depends on public funding from monopoly rights in technology, enhanced legal requirements to share publicly funded technologies in pandemic times, and investment in technology transfer hubs and local vaccine manufacturing capacity in low- and middle-income countries. We further suggest reforming the IP system to create a robust global technology transfer mechanism and to stimulate faster sharing of patented medicines and vaccines
Brief of Amicus Curiae Gregory Klass in Support of Plaintiff-Appellee
Get PDFThis scholar’s amicus brief in the Fifth Circuit argues that tort remedies play an important role in the contract ecosystem, including promoting efficiency in exchanges; that a party who has been defrauded in the formation of a contract is not bound by contractual limitations on tort liability; and that worries about the tortification of contract law are overblown and out of date
What Role for the WTO in Disciplining China’s State-Dominated Economy?
Get PDFIs the World Trade Organization (WTO) and its rules-based system capable of addressing the distortions in trade caused by the explosive growth of China’s State-Owned Enterprises (SOEs)? If it is, why hasn’t it been put to use? If the WTO rules are not up to task, where and how do they need to be changed? Those are the questions that Henry Gao and Weihuan Zhou answer in their thorough and compelling assessment of the current state of China’s SOEs, the commitments China made when it joined the WTO and the relevance of the applicable WTO rules, Between Market Economy and State Capitalism: China’s State-Owned Enterprises and the World Trading System.
The answers to those questions have taken on greater urgency in light of the Trump Administration’s view, now largely adopted by the Biden Administration, that if the WTO is incapable of addressing the United States’ concerns over China’s increasingly non-market, Communist Party-dominated economy, then the WTO is not sufficiently valuable to bother investing in or working hard to reform. The answers are all the more important in light of the increasingly accepted view that trade with China is unfair and damaging to the United States
Gouverneur Morris and the Drafting of the Federalist Constitution
Get PDFThe Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger Sherman. There is a lot to work with.
Gouverneur Morris is the one “forgotten founder” who really shouldn’t be for-gotten. The classic picture of Gouverneur Morris is actually a joint picture painted by Charles Willson Peale in 1783. Gouverneur Morris is on the left, and Robert Morris is on the right. They weren’t relatives, despite the shared last name, but they were very close. Gouverneur Morris and Robert Morris were business partners during the Revolutionary War. Robert Morris, who is kind of the Jeff Bezos of the 1780s, was as close as the United States had to a president during the Revolutionary War. He was the head of finance and Gouverneur Morris was his number two. I will be focusing today on Gouverneur Morris’s work on the Committee of Style at the end of the Federal Constitutional Convention.
As the Federal Constitutional Convention is drawing to close, it’s hot and everybody’s tired. It has been four weeks since they had a draft of the Constitution, which was composed by the Committee of Detail. There has been a month of debate and votes up, votes down. There’s no draft constitution, even though the Convention is near the end of its work. So, the delegates together form a committee—the Committee of Style and Arrangement—and over three days this committee drafts the Constitution with Morris as the lead drafter. And then, very hurriedly, the Convention reviews it, almost completely adopts it, and goes home. The work of the Committee is supposed to be polishing the Constitution—taking what’s already been agreed to and putting it in a final document.
But what I argue in a recently published article in the Michigan Law Review— the basis of this talk—is that, as the drafter on the Committee of Style, Morris made fifteen substantive changes. As you’ll see, most of them are very subtle, but they have incredible consequence: He carefully picked words to advance particular substantive ends. With the passage of time, we have lost the meaning of much of this text. But if we are going to read the Constitution clearly—and as it was ratified at the time—we must recover the meaning of the texts that, on fifteen occasions, he changed. This is particularly important at a time when four members of the Supreme Court are originalists and focus on the original meaning of these words.
One part of this talk is about the changes he made. There were a number of basic causes Gouverneur Morris tried to advance during the Constitutional Convention, and he lost a lot of those battles in the months before he became the Committee of Style’s drafter. He was a big government person. He was probably, with the possible exception of Alexander Hamilton, the strongest nationalist at the Convention. He was a big protector of private property. He was a champion of the judiciary and judicial review, and he was unquestionably the fiercest opponent of slavery at the Convention. And he was, with James Wilson, the Convention’s leading champion of the Presidency. In each of those areas, on the Committee of Style, he made very subtle changes to advance his goals. If you read the text in accordance with the meaning of the words in 1787, you’ll see how it reflects his meanings, what he wanted to achieve.
Taken all together, with these changes, Morris created the Federalist Constitution. That will be the subject of the first part of this talk. But most originalists today read the Constitution very differently. They see the Constitution as a Jeffersonian Republican Constitution, not as a Federalist Constitution. And the reason why that occurred is the topic of the final part of this talk. I will discuss how the Constitution’s original meaning was lost.
My thesis here is a simple one, but an important one for constitutional law. At the Convention, the Federalists won the battle over the Constitution’s text. In the years that followed, however, they lost the battle over what that text means