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A Tournament of Virtue
Get PDFHow ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues--intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges--the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected on the basis of merit--we want judges who are excellent. But Choi and Gulati have gotten something crucial terribly wrong: the selection of judges on the basis of measurable performance criteria would lead us away from true excellence. A tournament of judges would be won by judges who possess arbitrary luck and the vices of originality and mindless productivity; a tournament of virtue would be lost by those who possess the virtues of justice and wisdom. The judicial selection process should not be transformed into a game.
The author begins in part II, What is Judicial Excellence?, by tackling the tough problem that Choi and Gulati avoid--the explication of a theory of virtue for judges. The judicial virtues include: (1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom.
In part III, Discerning Excellence, he discusses the question how to tell whether candidates for judicial office are bad, which incompetent, and which are truly excellent. Three techniques for discerning judicial excellence are discussed: (1) screening for judicial vice; (2) detection of judges who possess practical wisdom; and (3) the recognition of judges whose record reveals a respect for the law.
Part IV, The Mismeasurement of Virtue, engages the idea of quantitative measures of judicial performance as a proxy for excellence. In this section, the author argues that citation rates, productivity measures, and independence--as measured by Choi and Gulati--are poor measures of true judicial excellence. A real world tournament of judges, moreover, would be gamed, leading to the selection of vicious rather than virtuous judges.
In part V, Conclusion: The Redemption of Spectacular Failure, he argues that Choi and Gulati\u27s idea is that rare and valuable thing--an idea that is both completely wrong and wonderfully illuminating
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
The Aretaic Turn in Constitutional Theory
Get PDFThe author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.
Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule\u27s recent essay, Interpretation and Institutions. Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn.
Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision.
Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue
The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights
Get PDFThis essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls neoformalism to distinguish his view from the so-called formalism caricatured by the legal realists (and from some other views that are called formalist ).
In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by briefly recalling why the unenumerated rights precedents are under theoretical (and political) siege. Then, in Part III, Neoformalism, Stare Decisis, and the Rule of Law, he examines the jurisprudential roots of a formalist revival that would create theoretical space for the idea that the Supreme Court should regard itself as bound by precedent. In Part IV, A Neoformalist Conception of Constitutional Stare Decisis, that theoretical framework is deployed to develop the outline of a neoformalist theory of constitutional stare decisis. This conception is brought down to earth in Part V, which answers the question posed by its title: Does the Neoformalist Conception of Constitutional Stare Decisis Support Contemporary Unenumerated Rights Jurisprudence? The author wraps it up in Part VI, Unenumerated Rights and the Future of Constitutional Doctrine
Constitutional Texting
Get PDFConstitutional Texting introduces an account of constitutional meaning that draws on Paul Grice\u27s distinction between speaker\u27s meaning and sentence meaning. The constitutional equivalent of speaker\u27s meaning is framer\u27s meaning, the meaning that the author of the constitutional text intended to convey in light of the author\u27s beliefs about the reader\u27s beliefs about the author\u27s intentions. The constitutional equivalent of sentence meaning is clause meaning, the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and phrases used in the Constitution have conventional semantic meanings--ordinary meanings in a natural language, English, as it was used at the various times when constitutional text was created and promulgated. The meaning of the Constitution should be understood as clause meaning. This Gricean view provides foundations for the theory that is sometimes called original meaning originalism or the new originalism.
This theory of constitutional meaning is developed in the context of commentary on Steven D. Smith\u27s recent book, Law\u27s Quandary. Smith argues that the meaning of legal texts must ultimately be cashed out in terms of the intentions of some author or authors. This essay examines that claim in depth and argues that Smith\u27s view is mistaken. The meaning of the Constitution is not determined by the semantic intentions of the drafters or ratifiers; rather, the best theory of the meaning of the Constitution is based on the ordinary or technical meaning of its words and phrases as they would have been understood by the relevant audiences, citizens and lawyers, at the times particular constitutional provisions were adopted and promulgated.
Part I is entitled Introduction: Talking and Texting, and it introduces the Gricean themes of the essay in the context of text messages or texting. Part II is called Constitutional Texting and it situates the essay in contemporary constitutional theory. Part III is Smith, and relates the themes of the essay to Smith\u27s book, Law\u27s Quandary, in the context of Paul Grice\u27s theory of meaning. Part IV is called Framer\u27s Meaning and Clause Meaning and it develops a Gricean and anti-Smithian account of constitutional meaning. Part V is Conclusion: How to Do Things with Clauses, and it argues that successful constitutional texting requires that framers and interpreters attend to clause meaning as the meaning of the Constitution
Originalism and the Unwritten Constitution
Get PDFIn his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). The author concludes by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Get PDFWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Constructing an Ideal of Public Reason
Get PDFIn deciding to what ideal citizens should aspire in political debate, some people contend that an ideal of political morality should mirror the freedom of expression. This Article undertakes the construction of an ideal of public reason. It begins with an investigation of the term public reason. The author considers various possibilities for an ideal or normative standard of public reason. As each option is considered, some possible formulations are discarded and additional specifications are added. He concludes with the ideal that is constructed through this process of elaboration, evaluation, and elimination
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