Blumenfeld on Splitting the Atom of Sovereignty: Ancient Greece and the Origins of American Federalism

Brian Blumenfeld, Independent Scholar, has published Splitting the Atom of Sovereignty: Ancient Greece and the Origins of American Federalism. Here is the abstract.

In an era when history and tradition increasingly inform the legal reasoning of judges, jurists and advocates from across the ideological spectrum, one historical theme engrained in our constitutional origins remains undeservedly obscure. Appearing throughout the original debates over the U.S. Constitution are investigations into and arguments about the federal governments (or “leagues”) of ancient Greece. A mere browse through the primary records of the founding reveals the esteem with which that era drew lessons and heeded warnings from these classical federal precedents. In laboring over how to form a more perfect union, Americans in the 1780s looked not only to their contemporaneous political conditions for viable answers, but also looked to history for how federal unions were formed, how they functioned, and why they succeeded and failed. The greatest lesson learned from Greek federalism, repeated throughout the founding era, was how the three principal federal governments of ancient Greece—the Amphictyonic Council, the Achaean League, and the Lycian League—all ultimately collapsed because their central governments were insufficiently empowered to withstand the coactive forces of domestic centrifugalism and foreign intervention. This failure, and the solutions for preventing its recurrence in America, figured prominently in the policies and polemics of the founding. Notwithstanding the prevalence of these classical references, there is no single source in the legal or historical literature that provides an adequate account of the Greek federal leagues and their role in the founding. The net outcome is that the scholar, student, jurist or advocate examining our constitutional origins is often confronted with references to Greek federalism, and yet is regrettably left without a source for adequately understanding the subject. As a corrective, this article catalogues and contextualizes the references to Greek federalism found throughout the records of the Constitutional Convention, the ratification debates, and the Federalist Papers; and then reviews the constitutions and histories of the three main Greek federal leagues that appeared throughout the founding. The end result will remove the bewilderment too often evoked by the subject, and will allow the reader to effectively engage with the themes of Greek federalism when conducting constitutional and historical analysis.

Download the article from SSRN at the link.

Williams on the Jurisprudence of Sandwiches @sawilliams.bsky.social

Sam Williams, University of Idaho College of Law, has published The Jurisprudence of Sandwiches. Here is the abstract.

The question of what bread-based foods count as sandwiches is a contentious one that seemingly everyone has an opinion on. This includes many prominent legal minds, including prominent judge Richard Posner and Supreme Court Justices Scalia, Ginsburg, and Sotomayor. This question is not purely hypothetical to the law, as courts have had to determine the meaning of a sandwich in cases with thousands of dollars on the line. In this essay, I examine this budding sandwich jurisprudence and how it explains and exemplifies several unique features of legal thought, including the ongoing debate between legal formalism and legal realism, the reasonable person, and the breaking up of binary political identity into more nuanced portrayals of "liberal" and "conservative" justices. By biting in to this developing jurisprudence, I help to bridge the gap between the legal mind and the broader world of sandwich analysists.

Download the essay from SSRN at the link.

Siliquini-Cinelli on What Legal Reasoning Is @CardiffLaw

Luca Siliquini-Cinelli, Cardiff University, School of Law and Politics, is publishing What is Legal Reasoning? in the International Journal for the Semiotics of Law (2024).

Pursuant to the aims and scope of the Special Issue it is part of, this invited contribution seeks to shed new light on the nature and working logic of legal reasoning. It does so by engaging with two of the most authoritative views on the subject which have recently been put forward in the Common law world—namely, Lord Hoffmann’s, and Larry Alexander and Emily Sherwin’s. A key-concern of the Anglophone debate on legal reasoning is whether it is a specialistic type of reasoning requiring ad hoc education and training, or ordinary reasoning subject to ordinary rules of language (i.e. sentence construction, interpretation, etc.). The article argues that compelling though they are, these sorts of enquiries do not help to understand what legal reasoning really is and how it operates. In particular, it argues that if we are to understand what legal reasoning is and how it works, we ought to examine the propositions it aims to craft and support. In so arguing, the article further shows that exploring law’s nature and operations as an intellectual means for social ordering also helps to understand how law works as a regulatory phenomenon more generally.

Download the article from SSRN at the link.

Lloyd on Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis @LloydEsq @WFULawSchool

Harold Anthony Lloyd, Wake Forest University School of Law, has published Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis. Here is the abstract.

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well.

Download the article from SSRN at the link.

Roux on The Role of Legal-Professional Culture in Constitutional Interpretation

Theunis Robert Roux, University of New South Wales, has published The Role of Legal-Professional Culture in Constitutional Interpretation. Here is the abstract.

Apex courts in liberal democracies deploy a broadly shared set of reasoning methods when interpreting constitutions. And yet, judgments in constitutional law are instantly recognisable as products of a particular legal-professional culture. While they do not determine outcomes, this suggests, cultural factors supply a shared repertoire of arguments that give each decision on constitutional law a distinctive local flavour. This paper first illustrates this point through a close reading of the Australian High Court decision in the Same-Sex Marriage Case. It then pivots 180 degrees to argue that, despite that decision's immersion in the idiom of Australian legalism, it possesses some qualities that are not so very unique to Australia. The High Court's reluctance to offer 'a single, all-embracing theory of constitutional interpretation', for example, is shared by a number of other apex courts. Despite the different legal-cultural settings in which they operate, this indicates, courts have responded in similar ways to shared institutional challenges. The culturally idiosyncratic nature of constitutional interpretation, the paper concludes, is not a barrier to comparative research on this topic. Rather, sensitivity to cultural variation is a necessary step in moving towards whatever general propositions might be made.

Download the article from SSRN at the link.

Pozen and Samaha on Anti-Modalities @michlawreview

David Pozen, Columbia University Law School, and Adam M. Samaha, New York University School of Law, are publishing Anti-Modalities in the Michigan Law Review. Here is the abstract.

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open-ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters — the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of constitutional law and to investigate their implications. The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning — from general moral theory to emotional judgment to many cost-benefit calculations — the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law’s “resonance gap.” Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm. Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach.

Download the article from SSRN at the link.

Cavanagh on Legal Thought and Empires @cambridge_cpt

Edward Cavanagh, University of Cambridge, is publishing Legal Thought and Empires: Analogies, Principles, and Authorities From the Ancients to the Moderns in Jurisprudence: An International Journal of Legal and Political Thought (2019). Here is the abstract.

Empire reveals some of the reasons why the history of legal thought should not be prepared in precisely the same way as the history of political thought. This article, beginning in the Mediterranean before adopting a more transnational scope, identifies analogy, principle, and authority as some of the principal modes of legal reasoning, and then seeks to examine several instances of their application within different imperial and colonial contexts. The British Empire is the most obvious trajectory in what follows. Like many other modern empires, however, it is optimally approached in view of longer term institutional and intellectual developments in Europe. Substantively and procedurally, European law became elaborate over time as dominant communities expanded to interact with more fixed communities. The motivations of those lawyers who elaborated this body of law were various and must be comprehended. While imperialism spurred innovation and change in the kind of objectives that were tasked to legal thinkers, what remained essential to the realisation of those objectives was their ability to enjoy recourse to those very modes of reasoning (analogies, principles, and authorities) that had characterised the development of European legal thought for millennia.

Download the article from SSRN at the link.

Allen on Doctrinal Reasoning as a Disruptive Practice

Jessie Allen, University of Pittsburgh, School of Law, is publishing Doctrinal Reasoning as a Disruptive Practice in volume 6 of the Journal of Law and Courts (2018). Here is the abstract.

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

Download the article from SSRN at the link.

A New Book By Jeffrey Lipshaw: Beyond Legal Reasoning: A Critique of Pure Lawyering @Suffolk_Law @routledgebooks

Jeffrey Lipshaw, Suffolk University Law School, has published Beyond Legal Reasoning: A Critique of Pure Lawyering (Routledge, 2017). Here, from the publisher's website, is a description of the book's contents.

The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of ‘thinking like a lawyer’ or ‘pure lawyering’ aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors. This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.

John Forrester's Thinking In Cases (Wiley, 2016)

The late John Forrester, Professor of History and Philosophy of Science, University of Cambridge, published Thinking in Cases (Wiley, 2016). Here is a description of the book's contents from the publisher's website.

What exactly is involved in using particular case histories to think systematically about social, psychological and historical processes? Can one move from a textured particularity, like that in Freud s famous cases, to a level of reliable generality? In this book, Forrester teases out the meanings of the psychoanalytic case, how to characterize it and account for it as a particular kind of writing. In so doing, he moves from psychoanalysis to the law and medicine, to philosophy and the constituents of science. Freud and Foucault jostle here with Thomas Kuhn, Ian Hacking and Robert Stoller, and Einstein and Freud s connection emerges as a case study of two icons in the general category of the Jewish Intellectual. While Forrester was particularly concerned with analysing the style of reasoning that was dominant in psychoanalysis and related disciplines, his path-breaking account of thinking in cases will be of great interest to scholars, students and professionals across a wide range of disciplines, from history, law and the social sciences to medicine, clinical practice and the therapies of the world.