Wednesday, November 30, 2022

Where is the Comparativism in Criticisms (or Defenses) of Originalism?

The New York Times this past weekend ran an interesting story about the status of foreign judges who sit on the high courts of other nations, noting that it is "a curious phenomenon among Pacific island nations" but also occurs elsewhere, including "Hong Kong, the Caribbean, Africa and small European nations." Canadians, and I am still one, may be familiar with this phenomenon because of controversy over the role of its former Chief Justice, Beverley McLachlin, who insisted on staying on as a high court judge in Hong Kong despite the resignation of a couple other foreign judges, arguing that that court is still independent of interference from the Chinese government. And I recently heard an interesting talk about the personnel of the U.S. Virgin Islands courts, who often come from neighboring islands and specifically from Puerto Rico. But for the most part I cannot say I had heard or thought much about the phenomenon of "foreign judges on constitutional courts." 

The general subject is surely interesting, as is the article's focus on those judges' unsteady status given the domestic politics of those nations. But what struck me the most was this passage, relying on an interview with Dr. Anna Dziedzic of Melbourne Law School:

Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.

Obviously this is interesting in any number of ways, not least because it offers a justification for originalism as a method of constitutional interpretation that is consistent with one or two main strands of justification for originalism: that it is less socially disruptive, and in particular--appearing here in a particularly salient context--that it leaves potentially socially disruptive changes to political rather than judicial actors. And it is interesting because that justification is pragmatic and institutional rather than relying on a theory of authority or of what is necessary for proper textual interpretation.

But what is most interesting about it is that, like any constitutional law professor, I have read the usual leading or popular criticisms (and defenses) of originalism--and I had no idea, or none that I can recall, that this phenomenon existed. Of course I was aware that Australia has been the site of interesting uses of and debates over originalism, and I am aware that, particularly compared to its first two decades and despite being pooh-poohed by much of the academic and judicial establishment, originalism has become more of a live topic in Canada. (Americans are still accustomed to treating Canada as an originalism-free zone and occasionally pointing to it for that purpose. I think that view is oversimplified, outdated--it certainly used to be quite true--and too inclined to accept the complacent statements of that country's establishment as fact.) But that was the extent of my live knowledge.

In making such an admission, one risks making the fatal error of winning David Lodge's game of "Humiliation." (As the Guardian summarizes it, in his classic academic satire Small World Lodge imagines a game in which academics compete by confessing "embarrassing gaps in their reading. One of the characters in the novel, in his determination to succeed, becomes so obsessed with winning that he admits to never having read Hamlet--as a result of which, he is promptly fired.") Perhaps, in admitting that I hadn't seen much about this in discussions of originalism, I'm neglecting articles or books that no one should admit not having read (or, in fairness, having read and then forgotten). Surely I have, in any event, missed a few exceptions. And one also risks admitting what I think is true: that many American constitutional law scholars, present company included, don't spend anywhere near as much time as they should looking at comparative constitutional law. Of course will find some and perhaps many discussions there, and in doing some follow-up browsing after reading the Times article, I certainly found some relevant treatments, by, among others, Yvonne Tew, Sujit Choudhry, David Fontana, Katharine Young, Ozan Varol, Kim Lane Scheppele, and Lael Weis. All that said, and keeping in mind that originalism and originalist theory are things I read about in the course of general reading in my field rather than focusing my own research on those topics, I think I can say with confidence that as a general reader of this sort, I would remember it if the topic came up with any real frequency.

I wanted to test my intuition, so I did a very rough Westlaw search. I started with articles written by some of the most publicly prominent critics of originalism--not necessarily the best or deepest critics, but some of the critics who are most likely to get lumped into standard "For leading criticisms of originalism, see, e.g.," footnotes, and to write books or op-eds designed to influence general professional-managerial class assumptions about the topic. My focus was on domestic constitutional law scholars who meet that definition; I did not include comparativists. And I looked within that set for 1) relevant references to any of the countries that have been cited as using originalism of some form, including Malaysia, Singapore, Turkey, India, Australia, and Canada, or 2) relevant references to the authors I have noted above. I should note that there are debates about whether what some or all of those countries are doing (or debating: there are now a few Canadian judges who would describe themselves as originalist, but it's still far more a matter of minority academic argument than of judicial practice) can really be called American-style "originalism." That's fine. I would have accepted some acknowledgment of those debates as relevant.

As I say, it's a very rough search. I'm sure it could be done better. It certainly is not fine enough to reveal all the exceptions. But it does a reasonable job of showing the general norm, at least for this set of authors. And I did a couple of follow-on searches, expanding the list of authors and of sources the authors might refer to, including, at the bluntest level, a reference to a standard casebook like Tushnet and Jackson's comparative constitutional law book. 

You will not be surprised, given the windup, to hear that relevant references almost never came up. There were two real exceptions. Jack Balkin, having been pushed on this point by two comparativists--you can't get more of a push back thanan article (by Kim Lane Scheppele) titled "Jack Balkin is an American," even if I am not convinced by that article's assertion of just how nonexistent originalism is elsewhere--gives genuine discussion of the topic in more than one article, including his initial response to those pieces. And while I am, again, inclined to think he overstates the rejection of originalism elsewhere, Jamal Greene has given serious consideration to the topic of judges in other nations using some form of originalism. (David Fontana's useful piece "Comparative Originalism" is a response to one such article from around 2010, and my sense from an outside perspective is that it successfully encouraged Greene to go further in treating the topic in subsequent pieces.) Greene is certainly a prominent scholar and critic of originalism and Balkin is certainly a prominent scholar and something of the topic as well.  

And that's just about it. An occasional glancing reference to Canada or Australia at most; usually not even that and, in the case of a couple of the most publicly prominent academic critics of originalism, critics who also retail their criticisms in the popular press, absolutely nothing. On their map, "the United States" might as well be retitled "The Known World" and the rest nothing but blank space. Once you start not seeing references in these writers' work to comparative constitutional methodology (including, in at least the countries mentioned above, originalism or debates about originalism), you start not seeing it everywhere.

This would not be so surprising coming from con law scholars making glancing references to originalism. One doesn't expect every piece of domestic legal scholarship to look at how other nations do things. (That is, one isn't accustomed to expecting it. Maybe the low expectation is the problem. Does it really make sense to write regularly about, say, an area of private law without discussing the jurisprudence in that area of other common-law countries?) And as I've said, I do comparative work all too seldom. But in the areas I write about most often, I at least read and sometimes discuss what is done in other countries. How could one not do so? So I do find it surprising that if one is writing a major article, let alone an entire book, focusing on and criticizing a particular method of constitutional interpretation, there would be no reference at all to countries whose experience might confirm, confound, or complicate one's criticisms. If all you focus on is a method, surely you should be interested in the absence or, as we have seen, presence of that method elsewhere. I don't expect everyone to be aware of the experience foreign judges interpreting the constitution of their host country; I wasn't. But since, as it turns out, there are scholarly treatments of the practice, and more broadly of originalism abroad, I ought to expect those who focus closely on the topic of originalism to know that and include it in their discussions. 

The same thing can be said of advocates of originalism, and the same results apply. A similar Westlaw search conducted with prominent academic/public defenders of originalism substituted for the names of its prominent critics revealed virtually nothing of relevance. Again, there were exceptions, most prominently William Baude. For the most part, however, the cupboard was bare of any revealed knowledge of or interest in full-on or trace practices of originalism in other nations' courts.

One can offer all this simply to point out an interesting point in an interesting news article, or, in a friendly way, as notice to these scholars of a missed opportunity. Or one could offer it to point out the unfortunate frequency with which scholars of domestic constitutional law fail to look to comparative materials. Comparative constitutionalists already know this, of course, but it never hurts to remind the rest of us.

I am inclined to say two more things. Two fairly standard criticisms of originalism, which thus are relevant for both the critics of originalism and its defenders, are that it is impossible and exceptional: it can't be done, and the idea that it can and must be done is uniquely, oddly, unfortunately American. Again I quote the passage from the Times: "Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intent, which makes them less likely to make decisions that create social change, Dr. Dziedzic said." I do not say that these judges succeed, either in getting to any accurate sense of original intent or in channeling social change to the political branches rather than the judiciary. But it is striking nonetheless that they choose this method and for these reasons. Depending on how much they actually succeed, surely this is relevant to the question of impossibility.

On the second point, it does seem true to me that the United States, and American constitutional law, among other aspects of American life, often involves a sense of exceptionalism and parochialism. It's a sense that tends to be shared by both champions and critics of the United States or particular legal or constitutional policies, since both are animated by a sense that this country has a unique and perhaps providential greatness--or is failing to live up to a unique and perhaps providential greatness, or is living up to a unique quality of sin and evil. (In this country, the Puritan past is never dead; it's not even past.) But writing about originalism as if it is an utterly American sin (or virtue), while betraying no interest in whether the practice has occurred or continues to occur elsewhere and despite the presence of relevant information about that very topic, not only makes any such criticism (or defense) less than definitive. Surely it is also a perfect example of American exceptionalism and parochialism.  



Posted by Paul Horwitz on November 30, 2022 at 11:02 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, November 29, 2022

A Podcast on "Are the Federal Rules of Evidence Unconstitutional?"

I had a great time being interviewed on Excited Utterance about my recent paper, "Are the Federal Rules of Evidence Unconstitutional?"

My conversation with the terrific host Alex Nunn is available here.


Posted by Ethan Leib on November 29, 2022 at 10:05 PM | Permalink | Comments (0)

Labor Law Group 2022 Meeting Program - cohosted by USD's Center for Employment and Labor Policy (CELP)

next week we are excited that the Labor Law Group 2022 Meeting is coming to USD - the first big event that our new Center for Employment and Labor Policy (CELP) is co-hosting. Professors Ruben Garcia and Labor Law Group Chair Jeff Hirsch put together the panels which include:

Discussing Discrimination

Speakers:    Brad Areheart, University of Tennessee College of Law

                        Marcia McCormick, St. Louis University School of Law

                        Rachel Arnow-Richman, University of Florida Levin College of Law

                        Michael Green, Texas A & M School of Law

Moderator:    Nicole Porter, Chicago-Kent College of Law

Hot Topics in Labor Law

Speakers:   Roberto Corrada, University of Denver, Sturm College of Law

                        Charles Morris, Emeritus, SMU Dedman School of Law

Lea VanderVelde, University of Iowa College of Law

Moderator:    Ruben J. Garcia, William S. Boyd School of Law, UNLV

The Local Labor Movement in Southern California

Mikaiil Hussein, President, United Taxi Workers of San Diego

Starbucks United Worker, Long Beach

Peter Zschiesche, Labor’s Alliance, San Diego

Technology in the Workplace

Speakers:    Matt Bodie, University of Minnesota Law School

                        Cindy Estlund, NYU School of Law

                        Jeff Hirsch, UNC School of Law

                        Orly Lobel, University of San Diego, School of Law

Moderator:    Jeff Hirsch

Worker Centers at the Intersections

Speakers:    Sameer Ashar, UC Irvine School of Law

                        Llezlie Green, American University Washington College of Law

                        César Rosado Marzán, University of Iowa College of Law

Moderator:    Noah Zatz, UCLA School of Law

All About Arbitration

Speakers:   Lise Gelernter, Emerita, University of Buffalo School of Law

Martin Malin, Emeritus, Chicago-Kent College of Law                               

Moderator:    Cyndi Nance, University of Arkansas, Fayetteville

 Organizing and the Law: Lessons from California Hotel Sector Campaigns

Innovating Work-Law Enforcement

Speakers:    Catherine Fisk, University of California, Berkeley School of Law 

                        Ruben J. Garcia, William S. Boyd School of Law, UNLV

                        Charlotte Garden, University of Minnesota Law School


Posted by Orly Lobel on November 29, 2022 at 08:12 PM | Permalink | Comments (2)

Saturday, November 26, 2022

Integralism Gets its Soft Launch

I had always assumed, based on my reading in the area, that any prospect of an American integralist state was a dead letter, but that if it did occur it would involve burrowing from within rather than a more forceful, open, top-down approach. I was wrong on both counts. I was right on a third point, but it's hardly anything to boast about. Most serious students of integralism had predicted that, when it finally came about, its political and intellectual leadership would come not from Cambridge or Heiligenkreuz or the back pages of an obscure journal like Newsweek, but from Kanye West.

Posted by Paul Horwitz on November 26, 2022 at 12:41 PM in Paul Horwitz | Permalink | Comments (0)

Friday, November 25, 2022

The Lost Right To Jury Trials

I want to highlight a new article in the Duke Law Journal by Andrea Roth on "The Lost Right to Jury Trials in 'All" Criminal Prosecutions." A cute point that people make in Con Law classes is that we do not always take the Constitution literally. And an example is that Article Three says that "all" criminal prosecutions must be by jury, but the Supreme Court held decades ago that "petty" offenses can be tried without a jury. Now we have a strong historical analysis of that issue that makes a convincing case that the Court was wrong.


Posted by Gerard Magliocca on November 25, 2022 at 08:11 AM | Permalink | Comments (0)

Wednesday, November 23, 2022

RIP: Cecilia "Cissy" Marshall, 1928-2022

The Washington Post reports that "Cissy" Marshall, Thurgood Marshall's second wife and the guardian of the "reputation and legacy" of the late civil rights giant and Supreme Court justice, has died at the age of 94. Its obituary is interesting and moving, if rather brief. The Times has not gotten around to running its obit yet, although I am reasonably sure it will. (Only "reasonably" sure, because the Times's obituary selection choices have become ever more unusual, unpredictable, and occasionally rather arbitrary. Although I was saddened to learn of the death of the fellow who voiced Batman in cartoons, I am still waiting on a Times obit for Joseph Raz.)  

Posted by Paul Horwitz on November 23, 2022 at 01:05 PM in Paul Horwitz | Permalink | Comments (0)

A Legal History Moonshot

I was thinking recently about what might be a "moonshot" project during my sabbatical. In other words, basic research that may well yield nothing but would have a large payoff in the unlikely event that there is something.

One possibility would be to go through each and every member of the Joint Committee on Reconstruction (especially the more obscure ones) to see if any of them wrote anything about the deliberations. The work of the Joint Committee is one of the great mysteries in constitutional history. The most prominent members--people like John Bingham and Thaddeus Stevens--did not leave behind any records about what occurred behind closed doors. And probably no member did, as you would think that if someone had we would know about that.

If I try, I'll report back on any discoveries. 

Posted by Gerard Magliocca on November 23, 2022 at 07:59 AM | Permalink | Comments (0)

Tuesday, November 22, 2022

JOTWELL: Campos on Francus on the Texas Two-Step

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Michael A. Francus, Texas Two-Stepping Out of Bankruptcy, 120 Mich. L. Rev. Online 38 (2022), another discussion of the use of bankruptcy in mass tort.

Posted by Howard Wasserman on November 22, 2022 at 02:33 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Holmes and Alito

Paul has offered detailed comments on the NYT story about the Hobby Lobby leak and the broader anti-choice campaign to, as Paul puts it, "meet, cultivate, and influence the justices through friendship and other contacts." Some regard the latter as the greater scandal.

Some of the hand-wringing about the "influence peddling" sent me to Justice Holmes, the House of Truth, and Holmes' many about free speech with Learned Hand, Harold Laski, Walter Lippmann, Zachariah Chafee, Felix Frankfurter, and others in 1919, during the eight months between Holmes' majority opinion in Schenck and his dissent in Abrams. Put differently, progressive activists and other non-parties and non-colleagues engaged with Holmes in-person and by mail in social, non-judicial settings, attempting to influence and change (ultimately successfully) his First Amendment views; those changes reflected in subsequent opinions, which the Justice's supporters praised and celebrated. This effort spread beyond free speech to bigger progressive causes such as labor organizing and workers' rights (with which Holmes was on board).

What, if anything, provides a meaninful difference between Holmes' engagement with Hand, et al. and Alito's engagement with Schenck, et al.? (Note I am focused not on the Hobby Lobby leak but on the broader campaign to kibitz with the Justices).

Continue reading "Holmes and Alito"

Posted by Howard Wasserman on November 22, 2022 at 09:31 AM in Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, November 21, 2022

End-of-Semester Speeches

In this New York Magazine story about Sam Bankman-Fried and his law professor parents, there is a passage that many law students and law professors will relate to:

Barbara Fried, too, made a deliberate practice of being emotionally generous and warm with her students. She wanted to guide them toward being whole people, not just cogs in the legal machine. “At the end of the semester, my torts professor literally went,Okay, that’s torts!’ and left the room,” another former student told me. Fried, on the other hand, “gave this beautiful speech that we’ve all talked about for literally years.” She started by telling her students about her own personal reckoning: “sitting in a Chinese restaurant one day, realizing that “the goal of life is not to die with all of your options still on the table.” She closed with a poem, “Sometimes,” by Sheenagh Pugh. It’s about life defeating us often but not all of the time. “Sometimes a man aims high, and all goes well,” the first stanza ends. “Sometimes our best intentions do not go / amiss.” Fried received a standing ovation.

Tastes differ on such matters. But I have given both sorts of speeches in my own time and it is not clear to me that the second type is preferable to the first. 


Posted by Paul Horwitz on November 21, 2022 at 06:31 PM | Permalink | Comments (5)

The Court and Politics: An Update

Two points, which seem to fit reasonably well into what I wrote on Saturday about the latest Supreme Court fracas:

1) "If we use this story as an entry point for thinking about casual, legal corruption in the legal and political world, is it relevant that today's story will itself be used by various groups to raise still more money, and that even ostensibly legitimate responses to it--recusal motions, calls for investigation, and the like--will in turn, as the people engaging in them will know full well, open productive new fundraising opportunities?"

Of course there have been calls for investigation, by both senators and advocacy groups. Of course that is reasonable and at least "ostensibly" legitimate. Of course senators are always fundraising off of these actions, for themselves and for funds to donate to colleagues and candidates as deposits in a favor bank. And of course the press releases by these groups are never far from the large, brightly colored "DONATE" button on the website. Like sharks, they must keep moving and feeding or they will die. 

2) In today's follow-up story in the Times, there is this passage:

Louis J. Virelli III, a professor at Stetson University College of Law, said in an interview that a law requiring the justices to disclose whom they meet with, especially parties who may have interests in a decision, would be constitutional, and it might restore some of the public’s faith in the institution.

I have no beef with the "parties who may have interests in a decision" point. But I wonder how broad a scope of disclosure Prof. Virelli has in mind when he suggests that the justices "disclose whom they meet with." Does that include all social contacts and friendships? Only official in-chambers meetings--which presumably would create an incentive for an increase in the number of unofficial meetings out of chambers? Given that some of these meetings and social contacts are only, in the words of my earlier post, potentially corrupting, rather than actually corrupt, would a list of disclosures restore faith in the institution? Or would it actually serve to undermine it even if those contacts are proper in law and in intent? One can imagine a justice meeting with a bishop, for instance, for legitimate or at least non-illegitimate reasons. One could then in turn imagine an advocacy group researching that bishop and discovering various anti-abortion speeches, and using that contact to raise money questions about such contacts. Obviously the polarities could be changed depending on the justice, the person the justice meets, and the group capitalizing off of the disclosure. All this relates to the questions I asked on Saturday: "What is the right balance between isolation and non-isolation for judges and justices?" and "Would we be worse off without any insider culture?" 

I am not against doing anything at all. (Regardless of whether this story pans out in full; as I wrote a couple of days ago, even if the Justices acted appropriately, if naively, the story at least suggests pretty unimpeachably that some individuals or groups sought to meet, cultivate, and influence the justices through friendship and other contacts.) But I'll repeat what I offered on Saturday: "Are the norms that are supposed to guide judges and justices today realistic and workable? Or, by being unrealistic and unworkable, do they encourage and lead to corrupt approaches, secrecy, and so on? Should those norms and rules--to the extent there are any actual rules--be enforced more strictly, but also relaxed?" We might indeed want to establish, in law or by norms, new rules governing justices' contacts. But in doing so, we should ask just how insulated we want the justices to be--and one natural and predictable response to an onerous or "transparent" and thus weaponizable disclosure rule would be for the justices to retreat into isolation rather than have any social or professional contacts at all--and seek rules that make sense in light of that desired end-state. 

And we should still ask why the hell we invite the justices to things like the FedSoc or ACS, the AALS, and individual law schools. I still don't see much of a point and I still think there is a small-c corruption to it that outweighs any actual edification we get from such appearances. But I should apply to that assertion the same caution I urged of others: namely, that we should always ask what the right default level of either contact or isolation is for judges and justices. 


Posted by Paul Horwitz on November 21, 2022 at 11:08 AM in Paul Horwitz | Permalink | Comments (0)

Leiter Lateral Moves with Tenure 2012-2022 - Analysis

This report looks at Brian Leiter's information about tenured lateral law professor moves between 2012 and 2022, inclusive. (Links to each of the specific posts used are below.)

Continue reading "Leiter Lateral Moves with Tenure 2012-2022 - Analysis"

Posted by Sarah Lawsky on November 21, 2022 at 07:18 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)