August 18, 2003
As Will said, certain other bloggers have been incommunicado thanks to a bit of a blackout. I'm just back from being gone for a different excuse, and now I'm catching up on the newspapers and such I've missed while camping. I only learned of the blackout because we hauled out the emergency radio to figure out what a snatch of overheard conversation -- "The entire East Coast is down" -- meant.
Sadly, I did not succeed in my quest to summit Long's Peak. The people I was hiking with and I were operating on 0, 2, and 4 hours of sleep; when we reached the far side of the mountain, just a mile short of the summit, wind whipping around us in the deep morning shadows, one of us got far too cold to safely continue. It's pretty cold up there, especially since the footing is too trecherous and the slopes too steep to push on very quickly. I was more chilled than I 've been in a while. I had on a t-shirt, umbros, long silk thermal pants, two long silk thermal shirts, windproof pants and jacket, gloves, and a knit hat. I probably should have gone with an insulated jacket. True, a few other climbers were in t-shirts and shorts. But I carry a jean jacket for the shady breezes of a DC early evening in June, and certainly when I'm out around Chicago in August. I never have picked up a tan out West.
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This week brings us another installment of our "20 Questions" feature, this time we have turned to Legal Theorist Extra Ordinaire Lawrence Solum:
1: Why did you start blogging?
Curiosity, mostly. When I started I had only a vague notion of what the blogosphere was all about, but I perceived that there might be an open niche in the ecosystem for a blog that focused on the intersection between normative legal scholarship, jurisprudence, and political theory. Another interesting question is: Why did I keep blogging? And the answer is that I was simply amazed and delighted by the response to my blog. I expected a few dozen visitors a week, but I discovered that hundreds and sometimes even thousands visited the blog on a single day. Even more astounding, I found that policymakers and pundits were reading the blog-despite its rather esoteric focus.
2: What blogs or publications do you consider absolute must-reads?
Read my links! Seriously, I regularly read about two dozen blogs, but there are a few that I visit almost every day. Crooked Timber has become a favorite; I was already a huge fan of Chris Bertram's Junius-not to mention the Farrells, Tom Runnacles, and Micah Schwartzman. The Volokh Conspiracy is another daily read. Of course, I knew Eugene Volokh professionally, and I became a huge fan of Jacob Levy and Orin Kerr, and the Conspiracy just keeps getting better, especially with the addition of Randy Barnett and David Bernstein. But the most important blog for me is Howard Bashman's How Appealing-a truly amazing source of information about law in the United States. One pleasant surprise about the blogosphere has been the high quality of many student blogs. Nate Oman just graduated, but his A Good Oman has been a joy, as has been Greg Goelzhauser's blog. Most recently, I'm following Brian Leiter's The Leiter Reports. Jack Balkin, with whom I've had a debate or two, posts irregularly but brilliantly on Balkanization.
Outside the blogosphere, I regularly read Philosophy and Public Affairs and Ethics. More and more, however, I find that I read articles in working paper form, on the Social Science Research Network (SSRN) and via Online Papers in Philosophy. Almost all the scholarly journals in law are available online (sadly often on proprietary services like Westlaw and Lexis/Nexis), and these days I hardly ever touch a law review article in non-electronic form.
3: It seems as though your approach to Constitutional Interpretation is a very formalist one- one starts by following the rules and precedents laid down by previous courts, then when those are unclear one turns to the text and structure of the Constitution, and when those are unclear one looks to original practice to clarify the meaning of the text. Is that a fair characterization of your approach?
Yes. Until quite recently, legal formalism has been terribly unfashionable as an approach to general jurisprudence. In an important sense, legal thinking in the last century was dominated by American legal realism, from Holmes through Frank, Llewellyn, and Pound to the Critical Legal Studies movement at the end of the century. Sophisticated neoformalism, in various forms, is the hot new thing, although legal formalism itself builds on a set of very traditional ideas about the law. My own approach is distinctive in two ways. First, unlike many originalists and textualists, I view a strong doctrine of precedent (or stare decisis) as an essential component of constitutional formalism. Second, although I think that legal formalism can be defended on consequentialist or deontological grounds, my own view is that fidelity to law is required by the virtue of justice-a position defended in my essay Virtue Jurisprudence: A Virtue-Centered Theory of Judging.
4: You have become one of the most committed defenders of "rule of law" values in the blogosphere. Are there ever situations where rule-of-law values should give way to individual circumstances, or would those be the exceptions that ate the rule?
This is a marvelous question and a very difficult one. My own view is very much influenced by Aristotle's theory of equity. Because legislators or judges must express legal rules in general language, there will always be cases where even the best formulation of the rule will produce unanticipated and unjust results. Hence, if the power to do equity is given to an official-not necessarily a judge-who has the virtue of practical wisdom (or phronesis), equity can be reconciled with the rule of law. The trick is one of institutional design. If abused, the power to do equity becomes the power to judge arbitrarily or, even worse, the power to legislate on an ex post, ad hoc basis. I wrote an essay on these questions, entitled Equity and the Rule of Law, which was published in Nomos some years ago.
5: You have previously a theory of "really strong stare decisis," suggesting that the Supreme Court ought to overrule previously established precedent only in the most extreme cases. Do you have any suggestions for how the court ought to find those extreme cases? That is, when, if ever, is a point of law "better right than settled"?
This is another hard and good question. Let me take it head on, by considering the case that is most problematic for my view-Brown v. Board of Education, perhaps the single most admired decision of the Warren Court. Brown is so difficult, because it is a decision that was apparently contrary to precedent but ended a very great evil, Jim Crow or segregation, the American equivalent of apartheid. In the late twentieth century, Brown v. Board was taken as the paradigm of a great decision-the correction of injustice by a Supreme Court that was willing to overrule precedent and pronounce broad legislative holdings. Surely, if we know anything about normative legal theory, we know that Plessy v. Ferguson deserved no respect on the basis of the doctrine of stare decisis.
>From this view of Brown v. Board of Education, one can move in a few simple steps to the conclusion that it is the general role of the courts to do justice, and that this task should not be impeded by precedent, evidence of the original meaning of the constitution, or even the constitutional text's plain meaning. The Supreme Court, it would seem, should be a "council of revision" or super-legislature, with the power to do justice.
Everyone is familiar with the difficulties that attend this view of the role of the courts. We all are willing to give the courts license to depart from precedent, ignore original meaning, and disregard the constitutional text, if the Court will only do those things when we approve. We are all ready to condemn the Court for departing from precedent, original meaning, or the text, if the Court does so to further values with which we disagree.
Legal formalism is the view that it is essential to create a wall of separation between the institutions that resolve disputes within the legal framework from the institutions that make and revise the laws. Without such a wall, the pressure to politicize the courts will mount. And once the process of politicization is underway, it is difficult to stop. So the circumstances in which the Courts should act lawlessly are very rare indeed.
Was Brown v. Board one of those cases? It may well have been. But before we rush to the judgment that it was, we ought to consider the alternatives. If the Supreme Court had never heard Brown v. Board, would segregation have been ended through other means? If the Supreme Court had followed the pre-Brown strategy of holding that particular instances of segregation were unconstitutional, because on the facts, separate was not equal, would the actual pace of desegregation have been different? Those are judgment calls that require greater practical wisdom and experience that I possess to make.
But I am sure about the following. Not every case is Brown v. Board. Not every social injustice is the moral equivalent of segregation. An adjudicator who possesses the virtue of justice has the disposition to decide cases in accord with the law, rather than her personal views of what the law should be. Judges should twist the law only when that is necessary to avoid a very great and clear evil that cannot better be overcome by other means.
6: Following up on that, what ought the court do when faced with inconsistent precedents? For example, in considering the Texas Statute in Lawrence v. Texas the Court had to grapple both with the ruling in Bowers v. Hardwick (1985) and also those in Romer v. Evans (1996) and Planned Parenthood v. Casey (1992). Which precedent should the court have followed and how does it decide?
Let me preface my answer with two points. First, in my view, prohibitions on private sexual conduct are unwise and unjust. Second, the question whether, precedent aside, laws against private sexual conduct by consenting adults is a difficult one-requiring for its resolution an account of the meaning of the Ninth Amendment and the Privileges and Immunities Clause of the Fourteenth Amendment. I am far from an expert on those clauses, and I simply don't know whether a sensitive understanding of their original meaning would support the result in Lawrence v. Texas. Having said that, Lawrence was decided in a particular legal context-with Bowers v. Hardwick on the books. So one might suppose that I would be committed to the view that the Court in Lawrence was obligated to follow Bowers. And I do believe that the Supreme Court should have respected the Bowers decision.
But the matter does not end there. One problem with discussing the doctrine of stare decisis is that our contemporary notion of what precedent means has been shaped by legal realism. Whereas legal formalists set great store in the distinction between holding and dicta, legal realists see the holding of a case as a prediction of the behavior of future courts. Thus, if a majority of the Supreme Court is willing to sign on to a "holding" that goes far beyond the facts of the case at hand, realists are more than willing to call this "holding" law. I couldn't disagree more. The holding of a case that is entitled to binding stare decisis effect is the ratio decendi-only that portion of the reasoning that is essential to the result. Broad rules of law, therefore, never emerge from a single case, but are only the result of an accumulation of precedents.
This brings me back around to the situation the Supreme Court faced in Lawrence. Bowers v. Hardwick was relevant to the result in Lawrence, but it was not necessarily decisive. The Bowers court addressed the substantive due process issue, but other legal theories were before the Court in Lawrence-including the equal protection theory that was the basis of Justice O'Connor's concurring opinion and (potentially) a privileges and immunities clause theory, urged in amicus briefs. And believe it or not, I don't know how I would have decided Lawrence, because on my view that would require immersion in the briefs, cases, and history-something I simply haven't done in the serious way that would be required were I to face these issues as a judge.
7: What effect do legal theory and scholarship have on actual legislative/judicial decision-making?
It varies tremendously. Sometimes legal scholarship directly affects the outcomes in particular cases-the famous Brandeis and Warren article on privacy, Charles Reich's article on the new property, and Catherine McKinnon's work on sexual harassment and gender discrimination are examples of direct and immediate shaping of the law by ideas from legal scholars at the level of theory. But the more usual path of influence is indirect and mediated. Legal realist scholarship, which was highly theoretical, had an enormous influence on American law but that influence played itself out over a period of decades. And it goes without saying that quite a lot of legal theory comes and goes without leaving a mark on the law.
8: Given the growth of online paper resources, computer databases, and the like, do you have any thoughts on what will be the future of libraries and paper journals in the next fifty years?
Predicting the future is always perilous, so I prefer to predict the present instead. Online resources are already having an enormous effect on legal scholarship-a much greater influence than in most other disciplines. This is in part the result of a historical accident. Lexis/Nexis and later Westlaw began to put most important primary source materials online in the 1970s and most important law journals went online in the 1980s, a trend that was extended to a variety of monographs in the 1990s. For all practical purposes, if it isn't online, it doesn't exist for purposes of scholarly legal research-setting aside legal history and law and social science work. Recently, however, SSRN has begun to accelerate the pace at which new ideas are disseminated in the legal academy. Increasingly, I find that I read papers before they are published. The role of intermediaries (e.g. journals and their editors) is already on the wane.
9: You have been acquitted of the charge of being a member of the frenzied left. Do you consider yourself more a member of "the right" than of "the left"? Do you think formalists are more likely to be right-wing than left-wing?
I find the simple left-right model of political ideology to unhelpful. My own political views have been formed mostly in reaction to thinkers that would be categorized as on the left. John Rawls, Jon Elster, Gerald Cohen, Amartya Sen, and John Roemer, all have been important influences. But unlike many on the left, I am a great believer in markets and a skeptical fan of a good deal of the work done by "right-wing" figures in public choice theory. As a pro-market/anti-regulation, formalist, egalitarian, I am afraid that I hold views that would result in my expulsion from every camp, right, left and center.
The association of the left with realism and the right with legal formalism is, in my opinion, mostly a historical accident. It just so happens that we are now in an era where the political right is opposed to Supreme Court decisions clothed in realist garb. ,br>
10: Law School is often seen as a more professional and practical discipline than most other post-graduate studies. What sort of role does abstract philosophy have in the legal academy as compared to other disciplines?
The legal academy is more interdisciplinary today than it has ever been, reflected in the increasing numbers of legal academics with PhDs in other disciplines, especially economics, political science, history, sociology, and philosophy. A crude picture of the legal academy might portray interdisciplinary warfare on several fronts. On one side of the canvass, there is a noisy battle between positive and normative theory-with a group of social scientists and historians arrayed against a bickering army of normative economists, philosophers, and doctrinalists. Over at the other end of the picture, however, moral and political philosophers are locked in a to-the-death struggle with welfarist economists, while historians and sociologists do pitched battle with positive economists over explanatory theory.
Abstract philosophical analysis and theorizing plays an important role in the legal academy, but most legal theory bears the same relationship to legal philosophy that political theory (as practiced by political scientists) has to political philosophy (as practiced by academic philosophers in the Anglophone world). Lawyers need to reach bottom-line conclusions, because law is a practical discipline.
When I was a philosophy student at UCLA, it was more usual than not that a graduate seminar would start with an argument on the first page or two of the first assigned reading, and then that argument would be dissected for the remainder of the quarter. That style of rigorous argument is found in the legal academy, but it is rare.
11: Richard Posner, among others, has suggested that Law School now functions as a sort of "brain drain." Bright young people, the argument goes, no longer enter graduate schools in economics, political science, or philosophy but turn instead to Law School where the monetary returns are far greater. This in turn contributes to a dearth of serious philosophers and economists, and a glut of lawyers running around suing each other. Do you think there is any truth to this?
Posner's thesis depends on the facts, and I just don't know what the facts really are. I believe that lawyers play an important social role, and that litigation, in particular, is important to the maintenance of the rule of law-which is foundational for a robust market economy. The solution, of course, is to raise the pay of historians, philosophers, political scientists, and sociologists. Economists, I believe, do a little better-in part because they can find jobs in Business Schools and in the private sector.
12: Do you have advice for those in law school who hope to pursue a career in the legal academy rather than practice law?
First and foremost, consider getting a PhD in addition to the JD, and in the alternative, adding a Masters degree to the JD. Of course, I'd advise a philosophy PhD, but others would counsel in favor of economics, history, political, science or sociology. Second, write, write, write! Early and often. Many law schools will not even look at an appointments candidate who has not published at least one piece of legal scholarship beyond a student note or comment. Third, begin to immerse yourself in the informal networks that make up the legal academy-by getting to know the faculty at your own law school, but also by following new scholarship as it comes out on SSRN or in the law reviews. Consider attending an AALS or APSA meeting as a law student. And a really good blog doesn't hurt!
The market for entry level jobs in the legal academy is intensely competitive. There are literally hundreds of applicants for every job at the top fifty law schools. Even top graduates at very prestigious law schools will find it difficult to place well, unless they are proactive in overcoming the awful and tragic fact that even elite American law schools offer very little in the way of training or support for their J.D. students who plan to become legal academics. (There are exceptions, of course.)
13: What originally drove you to study law?
When I was 14 years old, I attended a summer program for high school debate students and the instructor played a phonograph record of Harvard Law Professor Laurence Tribe as a college senior in the final round of the college national championships. When I learned what Tribe did for a living, teach law, I somehow decided that was what I wanted to do. Although I I thought long and hard about philosophy as an alternative, I stuck with my 14-year-old plan. And here I am!
14: You have recently written about "copynorms," and suggested that RIAA needs to restore the norms that copyright infringement is wrong. do you think copyright infringement has always been taken as lightly as it is by today's youth, and if not, what do you think contributed to the decay of the norm?
I am not aware of any empirical research on this question, but I am inclined to think that copynorms-the informal social norms regarding the rightness or wrongness of making unauthorized copies of copyrighted material-have never been terribly strong. Remember that before the photocopy machine and the tape recorder-relatively recent innovations in the history of copyright law-individuals simply didn't have much opportunity to engage in systematic violation of copyright laws. With the introduction of each new copying technology-the photocopy machine, the audio tape recorder, the VCR, and most recently, peer-to-peer filesharing, individuals have used the new technology to make unauthorized copies of copyrighted material. The case of audio tape is particularly revealing. Before Napster, kids made cassette tapes of their favorite music, e.g., the compilation tapes made by John Cusack's character in the movie versionof High Fidelity. The law actually accommodated itself to the copynorms. The Audio Home Recording Act actually had a provision that immunized noncommercial analog copying of music. Part of the music industries problem with P2P file-sharing is that they don't have a strong set of social norms to build upon.
15: If you were consulted by the president asking for advice to fill the next Supreme Court vacancy, who would you recommend? What if you were consulted by a democratic president with a small majority of democrats in the Senate?
This is the kind of question that one should be very cautious about answering off the cuff. In general, I think that Presidents should appoint judges who possess what I have called the judicial virtues-civic courage, a judicial temperament, judicial intelligence, and judicial wisdom-and especially the virtue of justice, the disposition to decide in accord with the law rather than the judge's own preferences or ideology. My own heroes among legal thinkers all grew up during a period of realist hegemony, and hence they tend to have views about general jurisprudence with which I disagree. Having said that, I think that Richard Posner and Ronald Dworkin are the two most brilliant doctrinal thinkers of our era. Neither will serve on the Supreme Court, but I would be delighted if they could serve together. From a younger generation, I might pick Cass Sunstein and Eugene Volokh, and who knows, they might both have a chance!
16: What Supreme Court decision do you think has been the most harmful to formalist rule-of-law values?
There are so many from which to choose! I think that the Supreme Court's nineteenth century sovereign-immunity decision, Hans v. Louisiana, represents a real low-water mark for the rule of law-although the issues are quite complex and debatable. The Warren Court's Miranda decision represents an extreme version of legal-realist legislative holdings; the Miranda Court essentially wrote a code of conduct for the interrogation of criminal defendants-the very antithesis of restrained, formalist judging.
17: You were a student and friend to John Rawls, the late philosopher who suggested a thought-experiment called the "veil of ignorance," in which members of a society create the rules for that society without knowing what roles in that society they will occupy, or what utility functions they will have. Do you think this is a useful thought experiment, or is it impossible to figure out what one would think and want if one were not necessarily
For me, Rawls's description of the original position, in which representative parties select principles of justice for the basic structure of society from behind a veil of ignorance is one of the most important ideas is the history of political philosophy. My friend, the eminent political philosopher and Hobbes scholar, Sharon Lloyd (University of Southern California), uses an analogy when explaining the original position that I think is brilliantly illuminating. Imagine that you are a parent, and that one of your children is tormenting her younger sibling. You say, "How would you feel if your sister did that to you?" Of course, your child cannot become her sibling. That is impossible. But one can nonetheless meaningfully engage in the thought experiment of assessing one's own actions from the point of view of another person. Similarly, we can reason as if we were behind the veil of ignorance in the original position. Indeed, we do this kind of constructivist reasoning all the time as part of our ordinary moral lives. "Would you feel that way if you didn't have a direct stake in the outcome?"-is a question we ask and answer all the time.
John Rawls was both a gentle and generous man and a philosopher of the very highest order. A Theory of Justice did more than any other work in the twentieth century to revive normative political and moral philosophy. In my opinion, it is the one book from that century that I believe is likely to enter the canon with Leviathan, The Two Treatises of Government, and The Prince.
18: Some people have suggested forcing non-formalist Judges in the judiciary to adhere to formalism through legislative processes-- either by refusing to enforce certain decisions (like the 9th Circuit's Pledge of Allegiance ruling) or by impeaching Judges who egregious ignore the law. What do you think of these tactics?
This question is really several different questions. One dimension of the question concerns the proper limits of judicial power and the deference owed by the legislative and executive branches to judicial decisions. Another dimension of the question goes to the legitimacy, justice, and efficacy of civil disobedience as a tactic to be used by the political branches in response to badly made judicial decisions. And a final dimension of the question goes to the standard for the impeachment of Article III judges. I am definitely not a fan of civil disobedience as a tactic in inter-branch power struggles. I am inclined to think that the standard for the impeachment of federal judges ("high crimes and misdemeanors") should not be stretched to include ordinary disagreements over judicial philosophy. But I also believe that each branch of government should have responsibility and authority to interpret the Constitution within its own sphere, and I am inclined to think that the United States Supreme Court has sometimes confused its legitimate power to resolve with finality the constitutional questions that arise in particular cases or controversies with the very different power to make authoritative general pronouncements about constitutional questions that bind the other branches as a kind of statute or constitutional amendment.
I haven't really seriously studied the Ninth Circuit's pledge of allegiance decision, but my initial impression was that, although unpopular, that decision was within the realm of reasonable legal opinion. My reaction to the tidal wave of criticism at the time was that much (but not all) of it was irresponsible political pandering.
19: Do you read fiction, and if so what sort of fiction do you read?< br>
I am an avid reader of fiction, especially novels, of all sorts. My favorite novels include Iris Murdoch's The Book and the Brotherhood and A.S. Byatt's Possession. I have a great weakness for genre fiction, including mysteries, science fiction, and espionage novels. I just finished Robert Littell's The Company, which I thought was deliciously entertaining. I had lunch with Eugene Volokh recently, and we both remarked how much we enjoyed Vernor Vinge's novel, Fire upon the Deep.
20: You come across on your blog as a very scholarly person. What unscholarly things do you do for fun?
Let me say first that I get a great kick out of my job. When I go on vacation, I am perfectly content to read scholarly papers, write, and blog. Lest I seem unbearably dull, let me add that I love to travel. My favorite places include the American Southwest, especially the magnificent landscapes of southern Utah and the equally breathtaking California coast, especially near Big Sur. I adore lazy afternoons spent reading and daydreaming in cafes in towns and cities-my favorites include Bologna, Vienna, Oxford, Shanghai, Budapest, Hong Kong, Amsterdam, and especially London. And I have a ridiculously large collection of classical music on CD-with an awful weakness for bombastic composers of really big symphonies, such as Bruckner, Mahler, and Shostakovich-redeemed perhaps by an equal and offsetting fondness for the piano music of Debussy and Schubert. If you don't own it, buy Walter Giseking's performance of the Debussy Preludes, and then for an illuminating shock, listen to Arturo Michelangeli Benedetti's recordings of the same works. That's heaven!
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