March 26, 2020

Asimow on American Vigilantism: Popular Justice and Popular Culture

Michael Asimow, Santa Clara Law School, is publishing American Vigilantism — Popular Justice and Popular Culture in Vigilante Justice in Society and Popular Culture: A Global Perspective. Here is the abstract.
This essay on American vigilantism is a chapter in the forthcoming book Vigilante Justice in Society and Popular Culture: A Global Perspective (Peter Robson & Ferdinando Spina, eds). It summarizes the rich history of American vigilantism, meaning that people administer popular justice by taking the law into their own hands. It focusses particularly on the San Francisco Vigilance Committees of 1851 and 1856 when large numbers of people who were frustrated by crime and corruption took over criminal law enforcement and hanged a number of desperados. The chapter also discusses San Francisco’s Chinatown Squad of 1879-1920, a group of police assigned the job of law enforcement in Chinatown by any means necessary. The chapter then turns to vigilantism in American movies. Given the centrality of vigilantism in American history and the hearty public approval it usually enjoys, it’s not surprising that a vast number of films concern this subject. The chapter concentrates on police vigilantism, exemplified by Dirty Harry and its sequels. Almost all of the Dirty Harry films were set in San Francisco (which connects the two halves of this chapter). These very successful movies transmitted a strong message of political conservatism. They depicted San Francisco as a pit of depravity and sexual permissiveness. Police vigilantism offends the criminal law compromise that gives government a monopoly on the use of force, but subject to a series of constraints that vigilantes ignore.
Download the essay from SSRN at the link.

March 25, 2020

Haack on The Art of Scientific Metaphors @MiamiLawSchool

Susan Haack, University of Miami School of Law, University of Miami Department of Philosophy, has published The Art of Scientific Metaphors at 75 Revista Portuguesa de Filosofia 2049 (2019). Here is the abstract.
Metaphor has no place in science, some claim; no, others argue, metaphor is crucial to science. Science is a rational enterprise with its own distinctive logical structure; no, it isn’t essentially different from literature, equally a kind of world-making. There is a distinctive metaphorical kind of meaning; no, metaphorical utterances have only their literal meanings, in which they are just plain false. Conspicuous by its absence is the reasonable middle ground Haack will be mapping here. Metaphor is useful, but not essential, to scientific work; metaphors don’t have a special kind of meaning, but they do have a special pragmatic role; scientific work and the writing of fiction do have important things in common, but there are also significant differences between the two enterprises. Once we understand how science works (§1), and then how metaphors work (§2), we can articulate the similarities, and differences, between scientific metaphors and literary ones (§3).
Download the article from SSRN at the link.

March 24, 2020

Buchanan and Dorf on A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualisms @NeilHBuchanan @dorfonlaw

Neil H. Buchanan, University of Florida College of Law, and Michael C. Dorf, Cornell Law School, are publishing A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism in volume 106 of the Cornell Law Review. Here is the abstract.
Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, determinacy, and political neutrality, neither theory delivers on its promises. Economic efficiency, the lynchpin of L&E, is incoherent because it relies on typically hidden but ultimately normative assumptions about preferences that would exist in an impossible world without law. O&T as it has been refined in response to devastating criticisms of earlier versions is indistinguishable from ostensibly less determinate rivals like Living Constitutionalism and purposivism. Accordingly, conservatives use L&E and O&T to obscure the role of normative priors, perhaps even from themselves. Liberals could use the same techniques for different results but heretofore generally have not, instead mostly settling for counterpunching against charges of result-orientation.
Download the article from SSRN at the link.

March 20, 2020

Northwestern University: Position Available in Legal Studies and American Studies Program

Northwestern University is hiring an Assistant Professor of Instruction to be appointed jointly in the Legal Studies program and the American Studies program. This is a full-time, benefits eligible position with a path to promotion. The initial contract is for two years.

The Assistant Professor of Instruction will offer six courses per year (generally two per quarter) on topics pertaining to Legal Studies and American Studies. The successful candidate will teach the American Studies thesis seminar and the Legal Studies thesis seminar in rotation and will teach an introductory course in Law & Society. Other courses offered would be a mix of seminars and lectures in the area of the successful candidate’s interests.

We are seeking a scholar whose work is rooted in both Legal Studies and American Studies; we encourage candidates with a PhD in Legal Studies, American Studies, or a related humanities or social science discipline to apply. A J.D. is preferred but not required. We are particularly interested in candidates whose work addresses racial and/or gender inequality and engages crime, policing, and/or incarceration, but will consider other areas of focus as well.

This is a nine-month faculty appointment, and applicant must have a Ph.D. in hand by September 1, 2020. Applicants should submit a cover letter describing their research interests and teaching experience, a current CV, and the names of two references. (Short-listed candidates will be asked to provide teaching evaluations. References of short-listed candidates will be contacted to provide letters of recommendation.) Applications received by April 24, 2020 will receive full consideration; interviews with finalists will be conducted remotely. The successful applicant will begin Fall 2020.

For further information about this position please contact Ann Kelchner at or 847-467-2207. An application link can be found here:

Northwestern University is an equal opportunity, affirmative action employer and does not discriminate against qualified individuals on the basis of race, color, religion, national origin, sex, pregnancy, sexual orientation, gender identity, gender expression, parental status, marital status, age, disability, citizenship status, veteran status, genetic information, or any other protected class. Individuals from all diverse backgrounds are encouraged to apply. Hiring is contingent upon eligibility to work in the United States. For more information, please see the University’s Policy on Discrimination and Harassment at

March 19, 2020

Wolitz on Alexander Bickel and the Demise of Legal Process Jurisprudence @UTKLaw

David Wolitz, University of Tennessee College of Law, is publishing Alexander Bickel and the Demise of Legal Process Jurisprudence in the Cornell Journal of Law and Public Policy. Here is the abstract.
This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law. The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient considerations while granting the political branches the space and time they need to work out pragmatic compromises. But once Bickel starkly drew out the tension between principled decisionmaking and pragmatic governance, the Legal Process consensus began to fracture. Why allow for unprincipled judicial decisionmaking with respect to certain justiciability and abstention questions, but not in other areas of doctrine? As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time.” Bickel’s passive virtues solution found no favor among his Legal Process peers and drew even greater criticism from Warren Court-defending legal liberals. Bickel’s penetrating insights into the tensions between principled decisionmaking and pragmatic governance had exposed an always latent divide in Legal Process thought, one Bickel himself could not successfully reconcile. After Bickel, normative jurisprudence has become ever more polarized between consequentialist-pragmatic approaches on the one hand and principled-rationalist approaches on the other.
Download the article from SSRN at the link.

March 16, 2020

Millemann, Rauh, and Bowle on Teaching Professional Responsibility Through Theater @MikeMillemann @robertbowiejr

Michael A. Millemann, University of Maryland School of Law, Elliott Rauh, and Robert Bowle, Jr., are publishing Teaching Professional Responsibility Through Theater in the Hastings Race and Poverty Law Journal (2020). Here is the abstract.
This article is about ethics-focused law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two). The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to partially vindicate the rights of those wrongfully convicted, but could not provide any real remedy for decades of wrongfully deprived freedom. In sharp contrast, the worst and best of the legal profession were on display. We argue that reproducing these extraordinary stories as plays, with students playing the roles of prosecutors, defense counsel, defendants (with not only wrongful convictions but also decades of wrongful incarceration), family members, crime victims, and people in the affected communities, is a powerful way to teach both law students and public audiences about the direct connections between legal ethics rules and the Rule of Law. It teaches as well the ripple effects on many people and communities, not just the parties, of unethical lawyer behavior. The students learned about legal ethics through in depth analysis of the actual case records, from pretrial motions through trial transcripts and appellate briefs (in the nature of ethics autopsies), and from the personal presentations in class by the exonerated men and their families. As important, the students learned about professional responsibility and irresponsibilities, from their immersion in the roles of the lawyers and “secondary” characters, like the affected families of the four men and the crime victims and their communities. The students also learned about competence, including how to work collaboratively to develop and to tell stories, to appreciate cultural differences, to examine witnesses, and to deal with performance anxiety. Because the men, all African Americans, were tried in 1968 (two), 1975, and 1983, the plays served as important points of comparison of criminal justice — criminal law and procedure — then and now. In this respect, the courses also were virtual laboratories in which to explore legal realism and critical legal theory, especially race theory; the true stories were powerful critiques of the romanticized, theoretical model of due process that underlies the formal criminal justice curricula.
Download the article from SSRN at the link.

Voigt on Minding the Gap: Analyzing the Divergence Between Constitutional Text and Constitutional Reality @CESifo @ILEHamburg

Stefan Voigt, University of Hamburg, Institute of Law & Economics; CESifo (Center for Economic Studies and Ifo Institute), has published Mind the Gap – Analyzing the Divergence Between Constitutional Text and Constitutional Reality Here is the abstract.
Constitutional Economics – the analysis of constitutions drawing on the economic approach – has made important progress over the last two decades. The factors determining whether a constitution is complied with, however, have received only little attention. This is surprising, as a huge gap between constitutional text and constitutional reality seems to exist in many countries. In this paper, this gap is referred as the de jure/de facto gap. The paper discusses ways in which the gap can be researched systematically and surveys the scant available literature that has tried to do so thus far.
Download the article from SSRN at the link.

March 10, 2020

Lemley on Chief Justice Webster @marklemley

Mark A. Lemley, Stanford Law School, has published Chief Justice Webster. Here is the abstract.
The Supreme Court has a love affair with the dictionary. Half of its decisions in the 2018 term cited a dictionary, often as the primary or exclusive means of defining a term in the statute. The Solicitor General may long have been the “tenth Justice,” but in the 21st century the Chief Justice of the Supreme Court may as well be, not John Roberts, but Noah Webster. The Court’s obsession with dictionaries as the arbiter of statutory meaning is a recent phenomenon. A review of cases from 50 or 100 years ago reveals no such focus. The Court’s increased use of dictionaries may stem from the idea – very much in vogue today in some quarters – that courts are not to make law but simply “call balls and strikes.” Looking up a term in the dictionary can seem like the height of judicial restraint. A court that does so isn’t consciously or subconsciously imposing its own ideology on a statute; it’s just turning to a trusted neutral source. That impression is misleading. Dictionaries are not the neutral, commonly-accepted panacea the Court seems to suppose. In this Article, I discuss a historical test case for the use of dictionaries to interpret legal documents. In the early 2000s, patent law flirted with the use of dictionaries to define the terms of patent claims, a process akin to statutory interpretation. The Federal Circuit (the national patent court) unanimously abandoned that experiment after only three years, for a simple reason: it was a disaster. The lessons of patent law’s brief flirtation with dictionary primacy in claim construction suggest that it’s a bad idea to turn to dictionaries to interpret statutes. That’s true for several reasons. Dictionaries aren’t designed to give what courts want: a single definitive meaning (or complex of considerations) that define what the law is. Dictionaries deliberately define terms expansively and in self-contradictory ways, seeking to capture all possible meanings of a term, not to pick among them. They don’t take legal nuance into account, and they can’t incorporate a background pattern of behavior or centuries of precedent against which Congress may have adopted a term. The use of legislative history is often attacked as a cover for judicial activism, but in fact it is the dictionary that provides the easiest cover for activist decisions that depart from Congressional intent and precedent. Dictionaries can literally justify any plausible meaning of a term. Courts that turn to them are doing exactly what they purport to disdain: picking the meaning of a statute based on their own personal preferences.
Download the article from SSRN at the link.

March 9, 2020

Nicoletti on The Rise and Fall of Transcendent Constitutionalism in the Civil War Era @UVALaw

Cynthia Nicoletti, University of Virginia School of Law, is publishing The Rise and Fall of Transcendent Constitutionalism in the Civil War Era in volume 106 of the West Virginia Law Review (2020). Here is the abstract.
In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty. After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.
Download the article from SSRN at the link.

Dane on Law Clerks: A Jurisprudential Lens @perrydane

Perry Dane, Rutgers, the State University of New Jersey, Rutgers Law School, is publishing Law Clerks: A Jurisprudential Lens in the George Washington Law Review Arguendo, Forthcoming. Here is the abstract.
American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial. This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff? The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices? The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge. This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.
Download the article from SSRN at the link.

March 3, 2020

Lindgren on The Religious Beliefs, Practices, and Experiences of Law Professors @NorthwesternLaw

James Lindgren, Northwestern University School of Law, has published The Religious Beliefs, Practices, and Experiences of Law Professors at 15 University of St. Thomas Law Journal 342 (2019). Here is the abstract.
In the 1990s I surveyed law faculties at the top one hundred law schools, collecting data on professors’ religious affiliations. [Measuring Diversity: Law Faculties in 1997 and 2013, 39 Harv. J.L. & Pub. Pol’y 89 (2016),] I found that Christians were represented at only about half their percentages in the larger population, while Jewish and nonreligious law professors were substantially overrepresented. Yet knowing whether a professor is, for example, Christian or Jewish only scratches the surface. For the general public, the General Social Survey and the American National Election Studies have long asked about belief in God and church attendance, but these questions had never before been asked of law professors. This article reports the results of a 2017 survey of about 500 law professors. The study first updates the 1997 study on religious preference and then moves on to explore the issues of belief in God, church attendance, and religiously motivated discrimination. Law faculties are substantially less devout than mere reports of religious preferences would indicate. Though religious belief in the general population tends to fall with increased education, that phenomenon does not explain or account for the observed magnitude of the differences. For example, while 24 percent of law professors say that they “don’t believe in God” and another 18 percent “don’t know whether God exists,” among those in the general population who have graduate and professional degrees, only 5.4 percent do not believe in God and 10.4 percent do not know whether God exists. While in this study higher percentages of Christians report religious discrimination than the non-religious, so do higher percentages of Jews and those who embrace “other religions.” As for their schools preferring non-Christians over Christians, Christians are much more likely to report this behavior than Jews or the non-religious, but the percentages reporting having witnessed this discriminatory preference are still relatively small.
Download the article from SSRN at the link.

Bandes on Remorse and Judging @BandesSusan

Susan A. Bandes, DePaul University College of Law, is publishing Remorse and Judging in Remorse and Judging, in Remorse in Criminal Justice: Multi-Disciplinary Perspectives (Routledge, 2020). Here is the abstract.
This chapter focuses on the judicial evaluation of remorse. It is an article of faith that judges can and should evaluate remorse when determining sentence. Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions. Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge. They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse. Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity. The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study.
Download the essay from SSRN at the link.

March 2, 2020

Colella on Looking Back at the Allen Ginsberg Obscenity Trial 62 Years Later @HaubLawatPace

Frank G. Colella, Pace University, has published Looking Back at the Allen Ginsberg Obscenity Trial 62 Years Later at 262 N.Y.L.J. no. 6 (Aug. 29, 2019). It is also forthcoming as a Pace University Research Paper. Here is the abstract.
Sixty-two years ago this month, a decade before 1967's Summer of Love, San Francisco hosted the obscenity trial of Allen Ginsberg's epic poem, Howl, during the summer of 1957. The 1950s, and well into the 1960s, witnessed no shortage of censorship battles over the arts-even comic books. This particular battle focused on a small chapbook of obscure poetry, Howl and Other Poems, has reached quasi-mythological status in the history of the Beat Generation. The nationwide publicity generated by the trial single-handedly dragged Ginsberg and Howl into the public consciousness. Today's global recognition and critical acclaim for Howl aside, that the trial itself still resonates in the legal community is no small accomplishment because the decision was never officially published. Moreover, it is unusual in and of itself for a municipal court trial judge to author a written opinion, which would be binding only upon those individuals within that municipality. As a consequence, People v. Ferlinghetti was never cited as precedent, or otherwise, in any subsequent legal proceeding.
Download the essay from SSRN at the link.