October 07, 2012
"The Boundaries of the Moral (and Legal) Community"The penultimate version (pending some publication editing) of my 2011 Meador Lecture, forthcoming in Alabam Law Review in 2013.
October 04, 2012
Thomas Nagel's new book "Mind and Cosmos"Michael Weisberg (Penn) and I review it for The Nation. As some may know, Nagel has made some unfortunate and confused interventions into the debates about intelligent design creationism. This book is related, alas. Scholars interested in the constitutional issues about the teaching of evolution and creationism may, in particular, find this review of interest.
September 11, 2012
Why Tolerate Religion?It will be out in early October.
September 10, 2012
Posner v. Scalia on Textualism, Redux
In our update to the earlier post, we noted that Justice Scalia's co-author, famed legal prose stylist Bryan Garner, had responded to Judge Posner's scathing review. Part of Mr. Garner's response included linking to a series of posts by a very conservative blogger at the National Review (one with a clear antipathy towards Judge Posner), Ed Whalen (whom we encountered once before on the issue of internet anonymity). The rhetorical volume of Mr. Whalen's postings is often out of proportion to their analytical and argumentative content, but his September 7 blog item does seem to get to the crux of the dispute. Mr. Whalen writes (with bits of irrelevant rhetoric removed):
Scalia and Garner don’t hide the ball. In the first paragraph of their preface, they state that they seek to show that the “established methods of judicial interpretation … are widely neglected,” that this neglect has had lots of bad consequences, and that it is “not too late to restore a strong sense of judicial fidelity to texts” (p. xxvii). In their third paragraph, they state that just as meaning generally is determined by convention, so in legal systems “there are linguistic usages and conventions” as well as “jurisprudential conventions” (p. xxvii). To that end, they set forth and explain 57 interpretive principles or canons and they expose thirteen widespread falsities....
Among the strangest of Posner’s sentences is this rhetorical question: “How many readers of Scalia and Garner’s massive tome will do what I have done—read the opinions cited in their footnotes and discover that in discussing the opinions they give distorted impressions of how judges actually interpret legal texts?” (Emphasis added.)
...[T]he last clause of Posner’s question indicates that he somehow thinks that Scalia and Garner are trying to describe “how judges actually interpret legal texts.” In fact, their “approach is unapologetically normative, prescribing what, in our view, courts ought to do with operative language” (p. 9 (emphasis added). They are reacting against, and trying to remedy, the widespread judicial “neglect” of “established methods of judicial interpretation.”
Mr. Garner writes in a similar vein:
Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated. That would be a telling criticism if the purpose of the cases had been to show the authoritativeness of the canon. But that was not the purpose. In choosing cases, we wanted examples that (1) contained lively problems that could be readily explained without bogging down readers, and (2) involved discrete textual points. We were looking for interesting issues that would illustrate good textualism—through our explanations. All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose. Indeed, it would be very hard to find examples in which a single canon was the sole basis for the decision.
This would explain why both Mr. Whalen and Mr. Garner effectively concede (or so it seems to me) that with respect to several of the cases identified by Judge Posner, the presentation of those cases in the book was, indeed, incomplete in precisely the ways Judge Posner suggested. The defense to that charge is: the cases weren't being presented as evidence of textualism correctly practiced, but as illustrating only one canon of interpretation.
This, however, does raise a puzzle about the book, one consistent with Judge Posner's worries (though one to which there may well be a good answer). If the cases cited as evidence of correct canons of textual interpretation did not, in fact, really rely on that canon of textual interpretation in rendering the decision (as Judge Posner charged, and as Mr. Garner, I take it, concedes), then these cases are no better than made-up examples of the application of canons of textual interpretation. Why cite cases at all? One might have thought the cases were meant to illustrate good textualist practice, but, if I understand them correctly now, both Mr. Garner and Mr. Whalen deny that. The book is, as Mr. Whalen puts it, "unapologetically normative." That's, of course, fine and could be quite interesting: but why cite actual cases at all except to criticize them by reference to the applicable normative standard? So while the reader might be tempted to think that the case examples are there as instances of sound interpretive practice, they are not, since most of the cases at issue were not really decided on textualist grounds, despite the passing invocation of a canon of which Mr. Garner and Justice Scalia approve.
Most readers will recall Karl Llewellyn's 1950 article on the canons of statutory construction. He identified dozens of canons of statutory construction, many of which were obviously inconsistent with each other. Yet each canon had been endorsed by a court as a correct canon. Llewellyn did not show, of course, that there were no principled grounds for discriminating between the appropriateness of particular canons for particular cases and problems. But the key question for a textualist is, if there are really 57 canons of textual interpretation (that's more than Llewelllyn found!), are there really sufficient meta-principles governing conflict among these canons to make textualism a constraining and reasonably determinate method of legal interpretation? The fact that the cases cited as illustrating particular canons are decided on non-textualist grounds might make one skeptical that there really are "established methods" of interpretation, as Justice Scalia and Mr. Garner write in the portion of the preface that Mr. Whalen quotes. If the canons of interpretation constituting sound textualist practice are not really decisive for the courts in rendering their decisions, in what sense are they "established"? This now seems to be the key question raised by this exchange.
UPDATE: Mr. Garner's rejoinder and Judge Posner's response to it are now on-line at The New Republic.
August 29, 2012
Judge Posner on Justice Scalia's Jurisprudence
This is a review that would finish the career of the academic who authored the book in question, and might even raise questions about scholarly fraud. Fortunately, Justices really do have "life" tenure! An excerpt:
UPDATE: Bryan Garner, Justice Scalia's co-author, replies (in part) here.
OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism. Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word “sandwiches” in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.
A company called PR had leased space to operate a sandwich shop in a shopping center. Its lease forbade the shopping center to lease space to another store if more than ten percent of the new store’s sales would be of sandwiches. PR claimed that the shopping center violated the lease when it leased space to a Mexican-style restaurant that planned to sell burritos, tacos, and quesadillas. After noting Merriam-Webster’s definition of sandwich, the court made a series of points in support of its decision against PR that were unrelated to dictionary definitions: “PR has not proffered any evidence that the parties intended the term ‘sandwiches’ to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of ‘sandwiches’ in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. [PR] was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties’ understanding of the term ‘sandwiches.’”
Those are more persuasive points than the dictionary’s definition, and as is often the case, the court got the definition wrong. (Scalia and Garner miss this, too.) A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.
Yet in further obeisance to the dictionary Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.
Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne)that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.
In fact, the court said that “biologically speaking a fowl is an animal,” but that it was not in the class of animals protected by the statute. The court gave a number of reasons for this conclusion—all ignored by Scalia and Garner. One, which was in fact textual originalist, was that “persons of common intelligence” conceived of chickens as birds in contradistinction to animals. But the most cogent reason for the court’s result was that the legislature had passed a statute forbidding cockfighting on Sundays, which implied that it was permissible the rest of the week, and had later repealed the statute, implying that cockfighting was again permissible on any day of the week—and in fact cockfighting was an open and notorious sport in Kansas (to the surprise and disgust of the judges).
Scalia and Garner denounce a court that held, in a case called Braschi v. Stahl Associates Co., that the word “family” in a New York rent-control statute that prohibited a landlord from dispossessing a “member of the deceased tenant’s family who has been living with the tenant” included “a cohabiting nonrelative who had an emotional commitment to the deceased tenant.” The word “family” was undefined in the statute. The case may be right or wrong; what is disturbing is Scalia and Garner’s failure to mention that it was a homosexual couple at a time when homosexual marriage was not recognized in New York, and that the opinion states that the two men had been living together just like spouses and had been accepted as such by their families.
Scalia and Garner applaud a decision (State by Cooper v. French) holding that a refusal to rent a house to an unmarried heterosexual couple did not violate a statute forbidding discrimination in rentals on grounds of “marital status,” a term not defined in the statute. The court relied for this conclusion on another statute, one forbidding fornication. One may doubt whether that statute was the actual motivator of the decision, given the statement in the majority opinion—remarkable for 1990—that “it is simply astonishing to me that the argument is made that the legislature intended to protect fornication and promote a lifestyle which corrodes the institutions which have sustained our civilization, namely, marriage and family life.” This statement is not quoted by Scalia and Garner. (And two sentences later the judge referred, contrary to a Scalia-Garner Diktat, to the statute’s legislative history.)
After the refusal to rent, but before the court’s decision, the anti-discrimination law had been amended to define “marital status” as “whether a person is single, married, remarried, divorced, separated, or a surviving spouse”; and the man and woman who had wanted to rent were both single, a protected marital status under the amended statute. On the page following their discussion of the case, Scalia and Garner, having moved on to another case, remark that “the meaning of an ambiguous provision may change in light of a subsequent enactment … unless the ambiguous provision had already been given an authoritative judicial interpretation.” The original provision— “marital status”—had been undefined and therefore ambiguous, and had not been given an authoritative judicial interpretation. So the amendment, which broadened statutory protection to unmarried persons, provided some basis (though far from conclusive), consistent with textual originalism as understood by Scalia and Garner, for the court’s decision that they denounce. They do not mention this possibility.
August 13, 2012
Why Tolerate Religion?
August 02, 2012
"Naturalism in Legal Philosophy"...
...revised (mainly in the representation of Scandinaivan Realism).
July 20, 2012
Leiter on Waldron on Hate Speech...
...is now on-line at Notre Dame Philosophical Reviews.
July 19, 2012
Perry on "Political Authority and Political Obligation"
This is the penultimate draft of what will be the lead paper in volume 2 of Oxford Studies in Philosophy of Law, due out later this year. (Volume 1 is here.) Perry's paper is a major contribution to the literature on authority, and so I hope it will whet the appetite of legal philosophers and those interested in the subject for Volume 2. Other contributors to volume 2 will include Bruno Celano, R.A. Duff, Matthew Kramer, Barbara Levenbook, and C.L. Ten, among others.
July 05, 2012
Waldron on the Regulation of Hate Speech
This review essay is now on SSRN; the abstract:
This essay reviews and evaluates the arguments in Jeremy Waldron's book "The Harm in Hate Speech" (Harvard University Press, 2012). We may summarize the argument for Waldron’s titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken. Second, the harm in question is damage to the “dignity” of vulnerable people based on defamation related to certain characteristics they share with a group, such that they are then deprived of the “assurance…that they can count on being treated justly” (85) in daily life because they are deemed to be “not worthy of equal citizenship” (39). Third, this harm to “the dignitary order of society” (92) is distinct from the individual offense hateful speech may cause, the latter not constituting a ground for regulation on Waldron’s view. Fourth, although regulating to prevent this harm may have some costs, the benefits justify the normal practice in democratic societies of regulating such speech (e.g., 151 ff.). I argue two main points: first, that Waldron's distinction between harm to dignity versus offense is neither stable nor clear; and second, that Waldron's failure to explain why harm to the dignitary order of society is the particular harm of speech that warrants legal redress raises a variety of questions about his view. If the moral urgency animating Waldron's case is the need to protect the vulnerable from harm, why limit that to the harm of losing assurance of "equal standing" or (as he sometimes says) the psychological harm of "distress"?
Consider, for example, what I call "the Ryan case: a powerful congressman, Paul Ryan, proposes to eviscerate and eventually eliminate Medicare, thus threatening to deprive millions of vulnerable, elderly people of essential healthcare. Surely assurance of access to healthcare when in need is at least as important as assurance of dignity in public. Why is this harm, then, not also a candidate for legal redress? I argue that Waldron's view does not have the resources to distinguish the Ryan case, but I do not offer that as a reductio of his position. To the contrary, it seems to me a virtue of Waldron's book is that by making an often vivid case for the harm that the content of speech can inflict on the vulnerable, Waldron forces us to take seriously Herbert Marcuse's old worry: namely, that while the toleration of harmful speech "in conversation, in academic discussion...in the scientific enterprise, in private religion" is justified, perhaps "society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake." Waldron does not explore that implication of his argument, but it is one that warrants renewed consideration if one shares Waldron's core intuition that harm to the vulnerable, even harm inflicted by speech, deserves legal notice.