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The Legal Imagination and The Protestant (Dis) Establishment
No full text35:2Let me begin with the contention that The Legal Imagination is a quintessentially liberal imagination—or, to borrow Trilling’s term, The Liberal Imagination. As such it is intimately related to what once was widely referred to as the Liberal Establishment, otherwise known as the Eastern or Northeast Establishment4—or, more significantly, the Protestant Establishment.5 What I propose to do here is to take seriously the Protestant dimension of the so-called Establishment and its intellectual culture that I think is reflected, with great nuance, in Jim’s remarkable book
Contractual Landmines
No full textVol. 41:307Conventional wisdom is that the standardized boilerplate terms used in
large commercial markets survive unchanged because they are an optimal
solution to the contracting problems facing parties in these markets. As
Smith and Warner explained, “harmful heuristics, like harmful mutations,
will die out.” But an examination of a sample of current sovereign bond
contracts reveals numerous instances of harmful landmines—some are deliberate
changes to standard language that increase a creditor’s nonpayment
risk, others are blatant drafting errors, and yet others are inapt terms that
have been carelessly imported from corporate transactions. Moreover, these
landmines differ from each other in important respects: deliberate changes
to the standard form reflect strategic lawyering on behalf of sovereign clients,
while errors that only benefit subsequent activists reflect haste in adapting
precedents to new transactions. Using both quantitative data and interviews
with market participants, we find that the conventional view fails to recognize
the unique and distorting role that lawyers play in the drafting of standard
form contracts. Systematic asymmetries in the market for the lawyers
who negotiate and draft these contracts explain why real-world contracts depart
from the efficient contract paradigm
The Lawyer, the Witch, and the Witness: Proving Witchcraft in the English Courts
No full textVol. 35:4In the sixteenth century, a new crime arrived on the scene of the secular
courts: witchcraft. Over the following two hundred years, tens of thousands
of individuals across Europe and its colonies would be tried and convicted
of this offense. In England alone, hundreds of men and women were
executed for covenanting with the Devil or using harmful magic against
their neighbors.
Almost universally, this "age of credulity and injustice"5 has provoked a
kind of retrospective horror that "rational, highly educated men 'could have
been so bigoted as to put people to death for ... patently impossible acts' ."
In popular thought, convictions for witchcraft must have been miscarriages
of justice: because witchcraft does not exist, witchcraft prosecutions are,
almost by definition, sham trials. And certainly, many aspects of the witch
trials seem barbaric by modem standards. In particular, much of the
evidence relied upon seems nonsensical. The criminal justice systems of
early modem Europe lacked many of the evidentiary rules that, today, seem
most fundamental - and contemporary commentators clamored for the
suspension of those that did exist. Because witchcraft was "an extraordinary
matter," the argument ran, it required "extraordinary dealing.
"Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws
No full textVol. 35:1In a hearing before the Florida House of Representatives, Rep.
Webster Barnaby addressed transgender witnesses as "demons and imps who
come and parade before us and pretend that you are part of this world."
Barnaby's remarkably candid statement is an outlier because it reveals that
religion-rather than sound science-underlies the new wave of antitransgender
laws that have been adopted by at least 20 states since 2021, with
the vast majority enacted in 2023. In legislatures, courts, and agency hearings,
proponents of anti-trans measures - in contrast to Barnaby - frame their
arguments in scientific terms, contending that biology and medicine dictate
exceptionalist treatment of trans gender people.
In this Article, we make three contributions. First, we debunk these
purported scientific claims, showing (with full citations to the scientific
literature) that the core arguments for anti-trans laws rest on misinformation
( defined as false information that could, with due diligence, be determined to
be false) and religious pseudoscience ( defined as statements that use scientific
vocabulary but rest on religious tenets and defy sound science). We closely
examine key state legal documents, including legislation, attorney general
opinions, and administrative agency documents. Our analysis shows that the
core and repeated "scientific" arguments in these documents defy sound
science and rest, instead, on religious principles about the binary nature of sex
and gender and the corruption of secular society.
Second, we show that the "playbook" of misinformation and
pseudoscience that has long fueled anti-LGBTQIA+ and anti-abortion laws is
now being deployed by conservative religious organizations to promote and
defend anti-trans laws. Not all religious organizations oppose transgender and
queer rights, and not all opposition to transgender rights is based in religion.
Still, close-knit conservative Catholic and evangelical Protestant groups have
been on the front lines of efforts to promote and defend anti-trans laws. Leaked
documents and emails show how medical and legal groups united by religion
collaborated to create purported "scientific" documents and identify purported
"experts" to push anti-trans measures.
Third, we address the limitations of litigation in com batting anti-trans laws.
Transgender plaintiffs challenging healthcare bans won decisive victories at the
trial level, with federal and state courts in six jurisdictions forcefully rejecting
the misinformation and purported "experts" put forward by the states. In the
summer of 2023, however, subsequent decisions in federal appellate courts and
state supreme courts overturned these decisions, with the higher courts giving
credence to states' pseudoscientific claims and sharply narrowing constitutional
protections for transgender youth and their families. These decisions explicitly
connected transgender rights to abortion rights and adopted the Dobbs
approach of limiting constitutional protections based on nineteenth-century
social conditions.
Litigation remains ongoing, and recent court decisions have addressed only
preliminary injunctions based on limited factual records, so the plaintiffs may
yet prevail in some cases. Even in the best case, however, litigation takes
years-with harm accruing to transgender people in the meantime- and is
vulnerable to gaming by states that are doubling down, enacting new anti-trans
laws even as existing ones are struck down.
We conclude that litigation is a welcome but limited remedy and that
additional legal and policy measures are worth exploring. These include the
enactment of express protections for LGBTQIA+ people by Congress and
federal agencies. More speculatively, we consider procedural protections that
could be adopted at the state level as well as possibilities for private action by
researchers and nonprofit organizations. Although there are no easy answers,
this Article outlines a range of possible approaches, some of which would
make it more difficult for states to target queer people and others of which
would tackle the broader problem of misinformation and religious
pseudoscience enacted into law. We also explore potential challenges under the
Establishment Clause, which could prompt courts, legislatures, executives, and
popular movements to reject pretextual secular claims when-as here-the
underlying motivation and asserted "facts" are religious in nature and amount
to the state adoption of religious doctrine
SPACE-TIME REVOLUTION: THE PROVINCIAL CONSTITUTIONALISM MOVEMENT AND THE ESTABLISHMENT OF LOCAL SYSTEMS IN MODERN CHINA
No full textOne of the crucial constitutional moments and historical turning points in modern
China was the Provincial Constitutionalism Movement.
This movement commenced in 1920 in Changsha, the capital of Hunan province in
south-central China. Initiated by Mao Zedong and local intellectual and political elites
spanning generations, it rapidly expanded to southern China and swept across the entire
country in the early 1920s. This constitutional transformation triggered the first revolution of constitutional space-time in modern China: the previously monocentric
state power structure evolved into a polycentric one, and the imperial-era local
administrative framework was transformed into a republican provincial system.
Consequently, for the first time in Chinese history, modern local systems were
established within a constitutional framework, affirming the constitutional status of
provinces, provincial systems, and provincial powers.
In current studies, the Provincial Constitutionalism Movement has long been
greatly underestimated due to the dominant Tocquevillian paradigm, which reduces any
constitutional change to a binary framework of French-style centralization versus
American-style decentralization. According to this framework, scholars interpret the
Movement as Chinese federalism—a short-lived and failed attempt at decentralization
within a predominantly centralized state. This binary paradigm is deeply rooted in a dualistic yet monocentric spatio-temporal view, which this book terms “constitutional
monocentrism.” In contrast, this book proposes a “general theory of constitutional
space-time,” aiming to explain constitutions and revolutions from a broader
constitutional perspective of spatial configuration and temporal transition. From this
perspective, the Provincial Constitutionalism Movement of the 1920s in China
demonstrated a polycentric republican revolution based on leading provincial capitals.
The Movement, in terms of constitutional time, was not merely a “new beginning”
influenced by Western impacts. Rather, it emerged as an adapted product of the continuous accumulation and eventual convergence of various Chinese institutions from
the imperial period to the republican era. Consequently, China did not ultimately
establish a federal state. Unlike the revolutionary constitutional movements of the
United States, India, and others characterized by mass mobilization, the Chinese
constitutional path, exemplified by the Hunan Self-Government Movement—the first
provincial constitutionalist movement beginning in 1920—was mainly distinguished by
establishmentarian elite integration. This unique approach may be termed in this book
as the path of Establishment Transformation. Since the constitutional reforms of the late Qing Dynasty, China’s constitutional
trajectory has continuously repeated the path to Establishment Transformation,
manifesting in various forms. Super capitals, such as Beijing and Changsha, functioned as
strongholds of the insider establishment, under the decisive influence of the incumbent
regime. The initial constitutional struggles centered on the dilemma of whether to
dismantle or preserve existing local governments inherited from China’s feudal imperial
era. Paradoxically, the ostensible “new beginning” heralded by provincial
constitutionalism ultimately represented a reversion to the “old ending,” demonstrating
the persistent influence of historical institutions on China’s constitutional development.
The Provincial Constitutionalism Movement, in terms of constitutional space, was
not a simple process of decentralization, but rather a (re-)centralization process
centered around provincial capitals. This revealed the longstanding polycentric constitutional configuration of China, with potentially multiple and mutable political
centers. This movement unveiled a constitutional feature of modern China that deviates
from stereotypical perceptions of the centralized nature of the Chinese Constitution:
Chinese provinces played a crucial role in national transformations, akin to American
states, which markedly contrasts with the French model centered around Paris.
Before the movement—as one might expect—during the period of the late Qing
Dynasty and the early Republic, constitutions had always been drawn up in Beijing, the
national capital. However, as the movement arose, the center of constitutional change
shifted from Beijing to Changsha and other provincial capitals. New provincial
constitutions established new regimes in a few super capitals—i.e., the provincial
capitals that had served as both constitutional centers and ancient dynastic capitals
where political power was concentrated time and again—and these constitutions were
simultaneously deployed in the competition to seize power on a national scale. Scholarly analyses of provincial constitutionalist movements during the Republican
period have consistently exhibited a significant oversight: an overemphasis on the
“constitutional” aspect while underappreciating the “provincial” dimension, particularly
the pivotal roles of provincial capitals and provincial systems. Within the constitutional
space, the provincial capital functioned as the center of the province, while the
provincial system represented the province’s evolution over constitutional time. The
provincial system revolved around the provincial capital, and conversely, the provincial capital was predicated on the provincial system. Together, these dual elements
constituted the fundamental components of the “province” within the Chinese
constitutional space-time continuum.
The interplay and evolution of provincial capitals and provincial systems reveal that
beneath the constitutional crises and struggles was a fundamental transformation of a
deep constitution, comprising the feudal configuration of constitutional space and the
generational transition across constitutional time. This deep constitution, a legacy of the
feudal imperial system from the late Qing Dynasty, had undergone only partial reform in
modern China, with its core structure largely preserved and adapted. As a result, this
deep constitution continued to shape constitutional transformations in modern China,
giving rise to new constitutional crises with each attempt at constitutional change. The trajectory of the Provincial Constitutionalism Movement, marked by its ascent
and decline, catalyzed a more intense resistance and critical examination of the vestiges
of the feudal imperial system among Chinese intellectual and political elites, exemplified
by Mao Zedong and his contemporaries. This heightened scrutiny propelled them
towards embracing a revolutionary path aimed at dismantling the establishmentarian
party and the entrenched deep constitution. In turn, this shift in approach led to the
second constitutional space-time revolution in modern China
Valuing ESG
No full textCorporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once non-pecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise. To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at 100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climate-related governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than 100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing
IN PRAISE OF JUSTICE SANDRA DAY O’CONNOR
No full textA personal narrative is presented which explores the author's experiences and reflections on Justice O'Connor's approach to jurisprudence
Beyond Harsh Justice: A Space for Institutional Reconstruction?
No full textVol. 35:3Victor Hugo's vivid evocation of the cruelty of lifelong penal stigmatization stands as a literary reminder of the importance of the modernizing journey, brilliantly charted by James Whitman in Harsh Justice, towards more humane, milder penal practices in continental Europe. Yet, as Whitman argued, as a result of deeply rooted differences in social culture and state authority, Harsh Justice remained the norm in the United States. And that norm seems to have taken yet greater hold over the last half century, with ever more offenders in effect dragging the invisible but heavy chain of perpetual infamy' as a result of the impact of a prison sentence and/or increasingly exclusionary post-sentence disqualifications
Commodity's Propriety
No full textI have known Greg Alexander for a very long time. Indeed, except
for members of his family, I may have known Greg longer than anyone else at this conference celebrating Greg and his work. Since the
beginning of this long friendship, we have had three notable encounters, and I would like to begin this Comment with those.
The first encounter was at the University of Chicago Law School in
the early 1970s. I was a student there at the time, and Greg was a
Bigelow Fellow, one of the Law School’s much-sought-after year-long
positions as legal writing instructors. I was already in my second
year by then, so there was no chance that I would have had Greg as
my Bigelow teacher, but somehow Greg and I and a fellow student
and good friend, Martha Fineman, all gravitated together. Martha
is now a very distinguished legal academic, holding a Woodruff Chair
at Emory University School of Law. But even back then, both she and
Greg were determined to go into law teaching. I, on the other hand,
was not. I had just jettisoned a history teaching career to go to law
school, and I had resolved to steer clear of anything like an academic
career. But under Greg’s and Martha’s influence, I weakened. In
that sense, Greg’s and Martha’s long-ago example explains why I
now have the opportunity to say anything at all about Greg’s voluminous academic work
The Promise and Peril of "Law and..."
No full textThe Columbia Law Review launched its Karl Llewellyn Lecture series on March 19, 2024, celebrating pioneers in the law who have innovated and challenged legal theory. The inaugural Lecture was delivered by Judge Guido Calabresi who spoke on the promise and peril of "Law and . . ." disciplines, such as Law and Economics, Law and Philosophy, and Law and History. A transcript of Judge Calabresi's Lecture is published in this Issue