Faculty Bibliography
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There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past--like precedent--will constrain it. And that the decisions of the preceding terms--overturning Roe v. Wade, expanding the "right to bear arms," ending affirmative action, among other extraordinary decisions--are just the beginning of a long and cold jurisprudential winter. Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the "need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court's originalism has become. That is my aim in this essay. Not because arguments change minds. Necessarily. But because they set the predicate for what would be a principled and appropriate response by Congress. It is time for Congress to reclaim the role that the framers of our second Constitution--the Civil War Amendments--intended for it. Because a principled originalism could not resist that claim, and that claim, more than anything else, would liberate rights in America from their current, narrow judicial hold.
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Conservatives in the US are close to making Congress call a convention for proposing constitutional amendments. How could it be protected for majority rule?
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If Dobbs is correct from an originalist position, a wide range of Supreme Court doctrine is not.
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Why it's important the 1960 Hawaii precedent be maintained.
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It would be a profound mistake for Congress to rush consideration of ECA reform.
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As the semantic capability of computer systems increases, the law should resolve clearly whether the First Amendment protects machine speech. This essay argues it should not be read to reach sufficiently sophisticated — "replicant" — speech.
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The self-governing republic works only if it expresses the will of the majority. But one party is now committed to minoritarian rule by any means.
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WITH A NEW AFTERWORD ABOUT THE 2020 ELECTION This urgent book offers not only a clear-eyed explanation of the forces that broke our politics, but a thoughtful and, yes, patriotic vision of how we create a government that’s truly by and for the people.”—DAVID DALEY, bestselling author of Ratf**ked and UnriggedIn the vein of On Tyranny and How Democracies Die, the bestselling author of Republic, Lost argues with insight and urgency that our democracy no longer represents us and shows that reform is both necessary and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drive our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states; A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way; A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
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Without the reforms of H.R. 1, our precariously majoritarian system will become predictably minoritarian.
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Changes to the funding of congressional races could shake up the two-party monopoly.
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The Bush v. Gore fight has become the template of a disputed election, but many of the worst-case scenarios could end up before Congress, not the Court.
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With insight and urgency, Harvard law professor and author of the bestselling Republic, Lost Lawrence Lessig argues both that our government does not represent us and that how we are represented doesn’t represent us—both flaws yield a democracy in crisis, and both demand reform that is both essential and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drives our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard Law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including especially our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way. A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
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The Internet moves in phases, and we are entering the third in 20 years. In this keynote, using a framework drawn from the Law of the Horse, I describe the phase we are entering - the surveillance phase - and the threat it presents to society generally, and democracy in particular. Along the way, I offer an understanding of the Net circa 1999, and the phase that followed it, circa 2009. At each stage, our inability to govern has been a significant liability. In the phase we are entering, it will be devastating.
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The fundamental fact about our Constitution is that it is old -- the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of "interpretive fidelity," framed within each new temporal context. Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls "fidelity to role." In each of the cycles of translation that he describes, the role of the judge -- the ultimate translator -- has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.
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An introduction is presented to the issue symposium theme of the thought of U.S. Judge Richard Posner, noting issue articles on topics including promissory estoppel, common law, and tax law.
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Lawrence Lessig, Forward, in Joseph Reagle, Good Faith Collaboration: The Culture of Wikipedia ix (2019)
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Wikipedia, the online encyclopedia, is built by a community -- a community of Wikipedians who are expected to "assume good faith" when interacting with one another. In Good Faith Collaboration, Joseph Reagle examines this unique collaborative culture. Wikipedia, says Reagle, is not the first effort to create a freely shared, universal encyclopedia; its early twentieth-century ancestors include Paul Otlet's Universal Repository and H. G. Wells's proposal for a World Brain. Both these projects, like Wikipedia, were fuelled by new technology -- which at the time included index cards and microfilm. What distinguishes Wikipedia from these and other more recent ventures is Wikipedia's good-faith collaborative culture, as seen not only in the writing and editing of articles but also in their discussion pages and edit histories. Keeping an open perspective on both knowledge claims and other contributors, Reagle argues, creates an extraordinary collaborative potential. Wikipedia's style of collaborative production has been imitated, analyzed, and satirized. Despite the social unease over its implications for individual autonomy, institutional authority, and the character (and quality) of cultural products, Wikipedia's good-faith collaborative culture has brought us closer than ever to a realization of the century-old pursuit of a universal encyclopedia.
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Lawrence Lessig, America, Compromised (2018).
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There is not a single American awake to the world who is comfortable with the way things are.” So begins Lawrence Lessig's sweeping indictment of contemporary American institutions and the corruption that besets them. We can all see it—from the selling of Congress to special interests to the corporate capture of the academy. Something is wrong. It’s getting worse. And it’s our fault. What Lessig shows, brilliantly and persuasively, is that we can’t blame the problems of contemporary American life on bad people, as our discourse all too often tends to do. Rather, he explains, “We have allowed core institutions of America’s economic, social, and political life to become corrupted. Not by evil souls, but by good souls. Not through crime, but through compromise.” Every one of us, every day, making the modest compromises that seem necessary to keep moving along, is contributing to the rot at the core of American civic life. Through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards—the first steps to corruption. Lessig knows that a charge so broad should not be levied lightly, and that our instinct will be to resist it. So he brings copious, damning detail gleaned from years of research, building a case that is all but incontrovertible: America is on the wrong path. If we don’t acknowledge our own part in that, and act now to change it, we will hand our children a less perfect union than we were given. It will be a long struggle. This book represents the first steps.
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In this essay, the author identifies the central challenge for democracy—crafting better ways to elicit a “we the people” that the people can respect. James Fishkin's work has pointed the way. This essay takes a few additional steps. First, the author discusses the influence of technology on democracy and the importance of building understanding of the need for Deliberative Polling in the “post-broadcast age.” He then suggests methods to make Deliberative Polling efficacious on a national level.
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Institutional corruption is typically viewed as a subset of corruption that is legal and systemic. There has been a surge of scholarship on institutional corruption in recent years, brought on in large part by a definition put forth by Lessig (2009b; 2013). Scholars have examined institutional corruption in various domains, such as Congress, the Department of Defense, and the pharmaceutical industry (Gilga, 2014; Sah & Fugh-Berman, 2013; Thompson, 2013). The growing body of research on institutional corruption has contributed to a much greater understanding of the legal corruption that is widespread in both public and private institutions; it has also raised new questions about institutional corruption. This paper systematically reviews the existing literature on institutional corruption and examines some of these remaining open questions. Specifically, we focus on the topics of institutional purpose, the funder-institution relationship, public trust, and personal responsibility, as they pertain to institutional corruption. Finally, we explore proposed solutions to institutional corruption, namely conflict of interest disclosure, conflict of interest elimination, and blinding.
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Rick Hasen has presented the issue of money in politics as if we have to make a choice: it is either a problem of equality or it is a problem of corruption. Hasen’s long and influential career in this field has been a long and patient struggle to convince those on the corruption side of the fight (we liberals, at least, and, in an important sense, we egalitarians too) to resist the temptation to try to pass—by rendering equality arguments as corruption arguments, and to just come out of the closet. Hasen had famously declared that the corruption argument supporting Austin v. Michigan Chamber of Commerce was a fake and that the only basis for justifying the ban on corporate spending in Austin was equality, not corruption. And the U.S. Supreme Court famously (in our circles at least) agreed, in the process of striking down the ban on corporate spending in Austin and everywhere else. Thus, Hasen argues, it is a fool’s errand to fake the corruption argument. We need instead, Hasen has constantly counseled, a bit of egalitarian pride. Be true to ourselves, Hasen tells us, and give up the pretense of corruption talk.
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Revised and updated for the 2016 election with 75% new material. In an era when special interests funnel huge amounts of money into our government—driven by shifts in campaign-finance rules and brought to new levels by the Supreme Court in Citizens United v. Federal Election Commission—trust in our government has reached an all-time low. More than ever before, Americans believe that money buys results in politics, and that business interests wield control over our government. Lawrence Lessig takes a clear-eyed look at what this crisis is—a crisis of equality—and how we arrived at it—how fundamentally good people, with good intentions, have allowed our democracy to be co-opted by outside interests, and deny citizens the basic equality of a representative democracy. Using examples that resonate as powerfully on the Right as on the Left, Lessig seeks out the root cause of our situation. He plumbs the issues of campaign financing and corporate lobbying, revealing the Tweedism—an endemic corruption of citizen equality—that has taken hold of our system. From there, Lessig presents ideas for how this republic lost can be regained, ultimately calling for widespread mobilization and a new Constitutional Convention, presenting achievable solutions for regaining control of our corrupted—but redeemable—representational system. He also explores the idea of Referendum Politicians, as a more immediate way to force change into the system. In this way, Lessig plots a roadmap for returning our republic to its intended greatness, by giving citizens what they were originally meant to have—a Congress “dependent on the people alone,” where by “the People,” was meant “not the rich more than the poor.” While America may be divided, Lessig vividly champions the idea that we can succeed if we accept that corruption is our common enemy and that we must find a way to fight against it. In this brand new edition of REPUBLIC, LOST, he not only makes this need palpable and clear—he gives us the practical and intellectual tools to do something about it.
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It has become increasingly common for a reader to follow a URL cited in a court opinion or a law review article, only to be met with an error message because the resource has been moved from its original online address. This form of reference rot, commonly referred to as ‘linkrot’, has arisen from the disconnect between the transience of online materials and the permanence of legal citation, and will only become more prevalent as scholarly materials move online. The present paper, written by Jonathan Zittrain, Kendra Albert and Lawrence Lessig, explores the pervasiveness of linkrot in academic and legal citations, finding that more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information. In light of these results, a solution is proposed for authors and editors of new scholarship that involves libraries undertaking the distributed, long-term preservation of link contents.
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It has become increasingly common for a reader to follow a URL cited in a court opinion or a law review article, only to be met with an error message because the resource has been moved from its original online address. This form of reference rot, commonly referred to as ‘linkrot’, has arisen from the disconnect between the transience of online materials and the permanence of legal citation, and will only become more prevalent as scholarly materials move online. The present paper, written by Jonathan Zittrain, Kendra Albert and Lawrence Lessig, explores the pervasiveness of linkrot in academic and legal citations, finding that more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information. In light of these results, a solution is proposed for authors and editors of new scholarship that involves libraries undertaking the distributed, long-term preservation of link contents.
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Lawrence Lessig, The USA Is Lesterland: The Nature of Congressional Corruption (CreateSpace 2014).
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Building upon his TED talk (now with more than 1.2 million views), The USA is Lesterland captures the argument of the talk, and fills it out with detail and a clear way forward. As Lessig describes, the key to the system of corruption that has now wrecked our government is the way candidates for Congress raise money to fund their campaigns. Members of Congress and candidates for Congress spend anywhere between 30% and 70% of their time raising money to get themselves elected or their party back in power. But they raise that money not from all of us. Instead, they raise that money from the tiniest fraction of the 1%. Less than 1/20th of 1% of America are the “relevant funders” of congressional campaigns. That means about 150,000 Americans, or about the same number who are named “Lester,” wield enormous power over this government. These “Lesters” determine this critical first election in every election cycle—the money election. Without them, few believe they have any chance to win. And certainly, neither party believes it can achieve a majority without answering the special demands these “funders” make. Our Congress has thus become dependent upon these funders. In this sense, we are now “Lesterland.”
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How we understand the "corruption" of Congress goes a long way to showing why, and how that "corruption" can be remedied. In this paper, Professor Lessig describes the originalist roots to his conception of "dependence corruption," and shows why that conception is neither a version of "equality" nor inconsistent with modern First Amendment jurisprudence.
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Institutional corruption: the consequence of an influence within an economy of influence that illegitimately weakens the effectiveness of an institution especially by weakening the public trust of the institution.
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In an era when special interests funnel huge amounts of money into our government—driven by shifts in campaign-finance rules and brought to new levels by the Supreme Court in Citizens United v. Federal Election Commission—trust in our government has reached an all-time low. More than ever before, Americans believe that money buys results in Congress, and that business interests wield control over our legislature. With heartfelt urgency and a keen desire for righting wrongs, Harvard law professor Lawrence Lessig takes a clear-eyed look at how we arrived at this crisis: how fundamentally good people, with good intentions, have allowed our democracy to be co-opted by outside interests, and how this exploitation has become entrenched in the system. Rejecting simple labels and reductive logic—and instead using examples that resonate as powerfully on the Right as on the Left—Lessig seeks out the root causes of our situation. He plumbs the issues of campaign financing and corporate lobbying, revealing the human faces and follies that have allowed corruption to take such a foothold in our system. He puts the issues in terms that nonwonks can understand, using real-world analogies and real human stories. And ultimately he calls for widespread mobilization and a new Constitutional Convention, presenting achievable solutions for regaining control of our corrupted—but redeemable—representational system. In this way, Lessig plots a roadmap for returning our republic to its intended greatness. While America may be divided, Lessig vividly champions the idea that we can succeed if we accept that corruption is our common enemy and that we must find a way to fight against it. In REPUBLIC, LOST, he not only makes this need palpable and clear—he gives us the practical and intellectual tools to do something about it.
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