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Quentin Skinner v. Charles Taylor: Explanation and Practical Reasoning in History, Philosophy, and Law
No full textOne can ask two different questions about a given social, political, or legal practice. First, one can ask whether, and if so how, the ideas embodied in that practice explain its development or current prevalence. Second, one can ask whether the practice should be advanced, abandoned, or altered in some way. According to today’s disciplinary conventions, the first question is an historical or explanatory one, whereas the second is a philosophical or normative one. This essay is about the relationship between these two questions. In particular, it asks the following: How, if at all, do the answers to these questions depend on each other? That is, to what degree, if any, must one evaluate or assess a practice in order to explain its social acceptance? And conversely, how, if at all, should the historical explanation of a practice bear on our normative evaluation of it? These latter questions – which are really questions about questions – are large and deep ones. They have been long debated by philosophers and historians and are thus ones to which I cannot give conclusive answers. The task of the essay is therefore less to answer them definitively than to suggest what certain answers to them reveal about the modes of reasoning in the disciplines of history and philosophy—and law. It does so by examining a dialogue that took place over several years between the historian Quentin Skinner and the philosopher Charles Taylor. That dialogue nicely illustrates the assumptions of each scholar’s home discipline because both scholars give voice to, yet also challenge, those assumptions. Indeed, I will argue that Skinner and Taylor end up forging common methodological ground with respect to the relevance of historical explanation to philosophical evaluation and vice versa. More specifically, both scholars end up seeing a closer connection between the two disciplines than either historians or philosophers typically do
Debunking the Myths: International Commercial Arbitration and Section 1782(a)
No full textInternational commercial arbitration continues to be the preferred dispute resolution mechanism for cross-border commercial disputes. Its popularity resides not only in the allure of efficient and flexible proceedings, but in the prospect of having highly qualified and reputable experts decide cases without the danger of national biases. Despite it being a private method of dispute resolution, international arbitration ultimately relies on an intergovernmental legal framework that allows enforcement of arbitral awards in over 150 countries in the world. Yet, arbitrators are constrained in their search for truth; they lack the coercive power to compel parties and non-parties to produce evidence that may be crucial to the outcome of the proceedings
Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism
No full textThe Supreme Court’s decision in Bostock v. Clayton County catapulted textualism from legal arcana to national news.1 Justice Gorsuch, writing for a 6-3 Court, ruled that the 1964 Civil Rights Act bars sexual orientation and gender identity job discrimination,
astonishing liberals with his method and confounding conservatives with the result. His majority opinion insisted that the “original public meaning†of the text resolved the case. Justices Alito and Kavanaugh argued passionately in dissent that Justice Gorsuch had
forsaken textualism. The intense methodological debate among three originalists befuddled Court-watchers. Could the textualist methodology yield liberal results? Was original public meaning more dynamic than people thought? Given the sharp disagreement among the Justices, is textualism less objective, determinate, and neutral than advertised?
As Bostock illustrates, textualism is fracturing, dividing itself into camps. It is time to think much harder and deeper about its methodology, its meta-theoretical foundations, and its overall legitimacy within our constitutional democracy. To begin with, textualism or original public meaning in action is far from a mechanical jurisprudence, where judges applying its method are driven inexorably toward a single answer. As this Article suggests, in any difficult case, the textualist judge starts with a choice of text and a choice of context. Once relevant text has been chosen, textualist theory requires a framework for interpreting it. Context once meant judicial consideration of legislative purpose and history, but in today’s Court choice of context is more likely to consider the whole act, the whole code, and the larger corpus of statutory law. And whatever text and context have been selected will be framed by the judge’s choice among dozens of canons of statutory construction.
In this Article, we theorize this feature of statutory interpretation in terms of production and consumption economies: Should interpreters focus on the readers/consumers of statutes (citizens) or the authors/producers of statutes (Congress)? On its face, the now dominant Supreme Court approach elevates the consumer perspective and obliterates that of the producers. In practice, however, the judicial perspective controls. That is, strict textualism or originalism amount to judicial aggrandizement under cover of populist rhetoric. We are losing our constitutional tradition of representative democracy, whose legitimacy rests upon public and legislative deliberation. Textualism and original public meaning pose a double threat to the rule of law: its method substitutes judicial for legislative evidence and marginalizes public deliberation. Our critical stance toward strict the strictest version of
textualism does not lead us to revive old-fashioned purposivism, but it does impel us to propose ‘legislative’ or ‘republican evidence’ as a necessary complement to ‘public meaning’ as tools of statutory interpretation
When and Why Agencies Must Decide for Themselves: Judge Williams’s Restrictive Approach to Administrative Subdelegation
No full textJudge Stephen F. Williams, for whom I had the privilege of clerking from 2003-2004, was an extraordinary person: a gentleman, a scholar, a mentor, and a judge’s judge. He was also one of the most important contributors to the development of administrative law doctrine in the last two generations. His opinions were careful, nuanced, and cogent. They were also grounded in strong normative commitments without ever being doctrinaire or rigidly ideological. Whether you agreed or disagreed with Judge Williams’s analysis or conclusions in any given case, reading one of his opinions would enrich your understanding of the issues and clarify your thinking. His body of judicial opinions, together with his scholarly writings, are a rich source of insights. I can think of no more fitting tribute to Judge Williams than this Special Issue’s exploration of his contributions to doctrine and jurisprudence, and I am honored to have been invited to participate
The Supreme Court as Bad Teacher
No full textSince the 195os, prominent constitutional law professors have often invoked the notion that the Supreme Court acts as an educational institution in American society. On this view, legal scholarship portrays the Supreme Court as a beneficent and inspirational teacher, one who is responsible for imparting unusually enlightened values on the nation. Despite this uplifting analogy's prevalence within constitutional discourse, two persistent criticisms have unsettled the notion that the Supreme Court in fact teaches any lessons at all through its written opinions. First, critics observe that citizens are generally unaware of even highly salient Supreme Court opinions, and it is hard for people to obtain a lesson from something they do not know. Second, critics note that claims extolling the Court's educational capacities unfold almost exclusively on an abstract level, rendering it virtually impossible to determine whether anyone has absorbed the Court's ostensible lessons and how that absorption occurred.
This Article aims to revive and recast the notion that the Supreme Court educates by approaching the matter from afresh vantage point. Rather than proceeding from the standard premise that the Supreme Court teaches good lessons, this Article inverts
the inquiry by identifying and examining three opinions where the Supreme Court has taught bad lessons: Buck v. Bell's validation of compulsory sterilization statutes; Minersville School District v. Gobitis's validation of requirements that students salute the American flag; and New York v. Belton's validation of police officers conducting warrantless searches of vehicles when they arrest motorists. Instead of simply asserting that the Supreme Court taught bad lessons in these three opinions, the Article offers specific evidence to defend that claim and also addresses the two primary criticisms of the view contending that the Court can educate. First, rather than suggesting that the Court taught citizens generally throughout the nation when it issued these opinions, this Article narrows the focus to identify particular subsets of the population that the opinions reached and influenced. Second, instead of offering merely abstract interpretations of how these opinions taught, this Article provides detailed historical accounts that identify and examine three particular mechanisms through which students responded to the Court's bad teaching. Building on work exploring the phenomenon that political scientists refer to as "policy diffusion," this Article demonstrates that the Supreme Court's bad teachings led policymakers around the country to learn, emulate, and extrapolate from those opinions. Examining the
Supreme Court's bad lessons also better positions scholars to appreciate how the Supreme Court has taught well, both by helping desirable policies become more widespread and by suppressing undesirable policies. This reconceptualization of the Supreme Court's teaching role challenges ascendant theories in legal scholarship asserting that the judiciary interprets the Constitution merely to ratify the nation's consensus values and that it lacks the ability to implement significant social reform
Consumer Expropriation of Aesthetically Functional Trade Dress: Results from a Randomized Experiment
No full textTrade dress, as a subset of trademark law, can offer potentially perpetual protection to a product's design or packaging features if they aid consumers in identifying a product's source. Yet these protected design features might be valued by consumers not only because of their source identifying function, but also because consumers find the design or package features beautiful, independent of the goodwill generated by the producer. Thus, under the doctrine of aesthetic functionality, manufacturers who
produce red-soled shoes or whiskey with a melted wax seal might gain what courts have called a "non-reputation-related" competitive advantage, ultimately warranting the expropriation of the protected product feature into the public domain.
This Article argues that courts, in assessing questions of aesthetic functionality, should give particular weight to surveys asking consumers whether they would be better off if competitors were allowed to use a protected trade dress feature in their own products. Just as, under the doctrine of genericide, consumers are able to expropriate word marks if consumers find it more beneficial to associate the language feature of the trademark with competitors' products, consumers should also be able to expropriate trade dress rights of a particular manufacturer if they find it more beneficial to have these design and packaging features available to the manufacturer's competitors. Creating a genericide analog for cancelation of trade dress can further trademark's central goal of protecting consumer welfare.
This Article reports "proof of concept" results of our proposed consumer surveys with regard to seven different forms of existing trade dress-including not only Louboutin's red-soled shoes and Maker's Mark's red-drip wax seal, but also Gucci's famous "diamond motif' and Emeco's Navy chair. We implement our surveys as a between-subject randomized experiment that allows us to causally estimate the intensity of consumer preferences as well as the impact of "guiding" subjects on the likely consequences of forgoing trade dress protection. Our results, while at best suggestive, found that judicial assessments of functionality were often not predictive of consumer protection preferences. For example, a statistically significant majority indicated they would be better off if other manufacturers were allowed to produce Emeco's Navy chair design, notwithstanding a contrary judicial holding. We also found that large consumer majorities chose to protect two iconic Veblen goods: the Louboutin shoe and the Gucci Diamond Motif even when informed that such protection would likely lead to higher prices-indicating a desire to preserve trade dress' power to
sustain social distinction
The Sustainable Corporate Governance Initiative in Europe
No full textIn July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by Ernst & Young (EY). The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, we point out deep flaws in the Report’s evidence and analysis. We recently submitted the content of this paper in response to the European Commission’s call for feedback. Parallel issues have arisen in American discourse, although none has reached the incipient lawmaking level that it has in Europ
Domestic Violence, the Indian Child Welfare Act, and Alaska Natives: How Domestic Violence is Weaponized Against Alaska Native Survivors
No full textAfter the forced separation of Indian families, Congress passed the Indian Child Welfare Act (ICWA) to create heightened procedural protections to maintain and preserve Indian families. Following Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), courts have indicated concern that the heightened standards of ICWA may be overbroad and harm Indian children. This Note provides an empirical counter to that concern, illustrating that, under similar circumstances, Alaska Native parental survivors of domestic violence lose custody of their children at considerably higher rates than non-Alaska Natives. The continued disparate treatment suggests that ICWA continues to serve an important purpose in protecting Indian families and ought to be strengthened
The "Gants Principles" for Online Dispute Resolution: Realizing the Chief Justice's Vision for Courts in the Cloud
No full textThe late Chief Justice Ralph D. Gants was many things to many people: a beloved friend and family member, a visionary judge, an advocate for the vulnerable, and a forward-looking thinker. This Article recalls both personal and professional aspects of Ralph to illuminate an area of law where his judicial legacy will endure: online dispute resolution (ODR). Well before the onset of the COVID-19 pandemic, Chief Justice Gants recognized the significance of online, cloud-based courts and articulated key principles for developing these courts to improve the lives of those who appear before them. This Article assesses the status and trends governing the recent explosion of ODR in both international and domestic settings. It closes by presenting four "Gants Principles," which Ralph championed and urged us toward, to govern how ODR systems can develop more equitably and efficiently
Coherent Capital Structure Policy: Between Bailouts and the Interest Deduction
No full textThe Federal Reserve’s recent, unprecedented corporate debt purchases will further reduce the cost of corporate debt relative to equity. Given the already high degree of leverage in the corporate sector, I argue that this is a dangerous policy choice. However, the best solution is not to outlaw the Fed’s crisis actions, but to reform other federal laws that create a debt bias in aggregate. I show how limiting the corporate interest deduction to those firms with a responsible debt-equity ratio would harmonize the goals of tax policy and bailout policy, establishing a coherent “capital structure policy” for the first time