Faculty Bibliography
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By outlining the history of administrative law from the Progressive era to present, this essay suggests a genealogical connection between Dewey’s pragmatism and democratic experimentalism. Democratic experimentalism is rooted in the Progressive paradigm of an administrative state guided by expert judgment but responds to the ossification of the U.S. administrative state. Connecting democratic experimentalism to Progressivism provides the background for some speculations about the politics that might be needed for democratic experimentalism to have successes equivalent to those of Progressive administrative law.
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'Democratic Founding' erects a strong and to me puzzling conceptual claim on the foundation of a much weaker but obviously correct empirical claim. The empirical claim is that external constituents -- 'other nations' -- can sometimes play an important part in creating a state that is internally legitimate. For example, they can help provide physical security for the residents of a territory in which contending parties offer different definitions of 'the people' for whom the nation will be 'their' nation. Under conditions of physical security, the contending parties can work out peaceful solutions and compromises that can defuse the controversy and allow the entity to become a nation of all of its people. This claim seems to me uncontroversially correct, although one might want to specify some of the conditions under which external constituents actually can effectively play this role. Adapted from the source document. Reprinted by permission of Oxford University Press
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First Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. First Amendment risk varies along several dimensions, including distribution of risk, its magnitude, and the magnitude of social benefit. After describing several cases in which the Supreme Court’s assessment risk or harm seems mistaken, I describe the tendency over time for courts to replace doctrine articulated as standards with doctrine articulated as rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules.
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This article examines three topics that have persistently arisen in connection with discussions of constitutions: What is the relation between a constitution and a ‘nation’ or a ‘people’, understood as those who reside within the territory for which the constitution is a constitution? What is the relation between written and unwritten principles of a constitution? And, to what extent must constitutions and their constituent elements be more permanent than ‘ordinary’ legal rules, and by what mechanisms is the requisite degree of permanence maintained?
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The concept of dialogue has become a central feature in contemporary thinking about constitutional review. Dialogues occur between courts and legislatures over the constitution’s meaning and implementation, making less clear the line between those institutions. This Essay links the idea of constitutional dialogue with the idea of constitutional duty, with the aim of illuminating modern constitutionalism more generally. It begins with a simple model of constitutional dialogue in which legislatures are the first movers, then switches the order so that courts are the first movers. Doing so brings out the connection between the ideas of dialogue and constitutional duty. Distinguishing among types of duty suggests that constitutions require not the maximization of any – or all – constitutional values, but joint maximization in which the constitutional system as a whole achieves as much as possible even though we can see that there is something more that the system could do to achieve any particular constitutional value. Finally, I suggest that joint maximization implies that only dialogic review is appropriate if we are interested in constitutional systems as a whole.
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This Essay, forthcoming in the University of Pennsylvania Journal of Constitutional Law, argues that ideas associated with the field of American political development can assist constitutional scholars interested in constitutional development. It speculatively examines structural features of contemporary constitutional politics using such ideas as the possibility that President Obama is (or might be) a reconstructive or transformative President and the institutional thickening of structures of resistance to reconstruction, to suggest how APD ideas might be of use in setting the contingencies of quotidian politics into a larger structural framework.
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The Routledge Handbook of Constitutional Law is an advanced level reference work which surveys the current state of constitutional law. Featuring new, specially commissioned papers by a range of leading scholars from around the world, it offers a comprehensive overview of the field as well as identifying promising avenues for future research. The book presents the key issues in constitutional law thematically allowing for a truly comparative approach to the subject. It also pays particular attention to constitutional design, identifying and evaluating various solutions to the challenges involved in constitutional architecture.
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In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed that they had suffered loss after loss. And, counting only outcomes, they had. Yet by the end of the decade, the Court had moved administrative law closer to the position the Progressives had sought. This Lecture examines developments in administrative law in the 1930s. Focusing on three major cases during that decade, this Lecture describes how far administrative law adapted to the vision articulated by Progressive scholars, most notably Felix Frankfurter and James Landis. In each case, Progressives believed that the Court had substantially eroded the accomplishments of administrative law; but in each, Progressives were mistaken. And whereas the Progressives failed to acknowledge how much they had gained from the Supreme Court during the 1930s, by the end of that decade, their opponents better understood what had occurred and mobilized political support to retrench. Only a presidential veto stood in the way of a substantial revision of administrative law. That veto, though, allowed modern administrative law to adapt to the changing place of administrative agencies in the modern administrative state.
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Using recent decisions dealing with the constitutionality of the Stolen Valor Act as its starting point, this Essay examines the First Amendment questions raised by statutes prohibiting lies as such, that is, outside the context of fraud and defamation. It evaluates the constitutionality of statutes imposing strict or negligence liability for lying, concluding that the First Amendment does not bar legislatures from adopting such statutes if the statutes are carefully drawn. It then assesses arguments that deliberate falsehoods can be prohibited because they have no social value, concluding that that judgment, while somewhat overbroad, is correct. In reaching that conclusion the Essay offers an interpretation of United States v. Stevens, the recently decided "animal snuff video" case, which some have thought stands as an obstacle to statutes prohibiting lies as such. The Essay also deals with false statements made by those who do not believe the statements to be false, observing that many such statements are "ideologically inflected" in ways that make is unwise, and probably unconstitutional, to regulate their dissemination. A final section briefly discusses statutes prohibiting false statements in political campaigns.
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Response to Dan M. Kahan, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harv. L. Rev. 1 (2011).
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Mark Tushnet, Law's Detour: Justice Displaced in the Bush Administration, 47 Trial 54 (2011)(reviewing Peter Margulies, Law's Detour (2010)).
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Professor Tushnet responds to Professor Driver's skepticism toward consensus constitutionalism, or the view that the Supreme Court "inscribes into constitutional law the views of an undifferentiated American people." Tushnet argues that consensus constitutionalism is more defensible than Professor Driver's argument allows, based on a "more generous" reading of their texts. Tushnet reads the consensus constitutionalists as arguing that the Court's decisions reflect a consensus and, to the extent there is a divergence from the consensus, the decisions are likely to be overlooked or ignored. Driver, however, argues that no consensus has ever existed. In response, Tushnet sketches the "same results claim," by which the results of debates concerning constitutional values will be the same regardless of whether (1) the judiciary or (2) the Legislative and Executive Branches, produce the result. Tushnet qualifies this claim and notes its limitations, thereby offering a research agenda for consensus constitutionalists. Tushnet also responds to Driver's view that consensus constitutionalism saps the normativity from constitutional debate, arguing that normativity remains possible particularly in light of recent debates. He notes that observations about today may be right or wrong but are subject to political change, with the result that any normative analysis is dangerous. As a result, Tushnet argues that consensus constitutionalists can offer only limited normative guidance to resolve contemporary issues. In any event, political leaders and judges are not required to find or occupy this normative field before making a decision. Tushnet concludes by noting Driver's limited reading of consensus constitutionalism and agreeing with Driver's criticism of the overstatement of consensus in constitutional debates and Driver's argument that any consensus does not foreclose normative arguments in court.
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Commenting on Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (2010).
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Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. At its heart Professor Fallon's case rests on the proposition that ‘[l]egislative action is more likely to violate fundamental rights than legislative inaction’. I call this the libertarian presupposition in Professor Fallon's case. This article examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. It then discusses Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic ‘against-for’ manner.
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This Essay, written for the fiftieth anniversary volume of the Supreme Court Review, examines two articles in the initial volume, Harry Kalven’s on the law of obscenity and Kenneth Karst’s on legislative facts in constitutional adjudication. Both articles exhibit a scholarly temperament of engaged detachment. Unlike much recent work in constitutional law, the articles are entirely doctrinal – and not the worse for that. The articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago. The Essay concludes by speculating that the rise of “constitutional theory” explains the disappearance of the sensibility Kalven and Karst exhibited. That rise may have conduced to characterization of those who disagreed with the writer’s preferred constitutional theory as either fools or knaves: fools, because they lacked the intellectual capacity to understand the compelling logic of the arguments supporting the theory, or knaves, because, knowing that the theory was the best one available, they willfully disregarded it in the service of their personal projects. The ideas that the constitutional questions the Supreme Court deals with are genuinely difficult and that the Justices, people of varying intellectual ability, can reasonably disagree over those questions are almost completely absent from today’s constitutional discourse – and those who try to advance those ideas are dismissed as naïve (fools) or as pursuing a concealed political agenda (knaves).
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Mark Tushnet, Legal Reasoning in Congress, 95 Iowa L. Rev. Bull.. 81 (2010).
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Commenting on: Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of the Sentate, 95 Iowa L. Rev. 1401 (2010).
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This Essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a "post-war paradigm" of domestic constitutional law and competing claims about national exceptionalism, the Essay sketches the "top down" pressures for convergence - judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. It then turns to "bottom up" pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. The Essay discusses whether the mechanisms it identifies lead to a race to the "top," to the "bottom," or to some more variegated location. It concludes with a brief treatment of how the globalization of domestic constitutional law can be accommodated to local notions of separation of powers.
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This Essay, forthcoming in the Texas Law Review, examines constitutional workarounds, which arise (a) when there is significant political pressure to accomplish some goal, but (b) some parts of the Constitution's text seems fairly clear in prohibiting people from reaching that goal directly, yet (c) there appear to be other ways of reaching the goal that fit comfortably with the Constitution. The routes to the goal are workarounds. Finding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts - and do so without (obviously) distorting the tools we use. Constitutional workarounds raise important questions about the Constitution and constitutional theory. They can occur only if the Constitution is in some sense at war with itself: One part of the text prohibits something, but other parts of the text permit it, and the Constitution itself does not appear to give either part priority over the other. And, to the extent that workarounds occur when there is political pressure to accomplish a goal blocked by parts of the Constitution's text, workarounds place under severe pressure the idea that a constitution is a form of commitment to avoid improvident actions that we are inclined to take because of perhaps passing political considerations: The first bit of text expresses our commitment not to do something in response to immediate political pressures, but the workaround allows us to succumb to those pressures. The Essay offers a simple classification of workarounds - true, fraudulent, and contested - and then discusses the prerequisites for workarounds, which include general agreement that the constitutional texts obstructing action no longer make much sense and, perhaps related to the existence of such agreement, some substantial degree of bipartisan agreement that using the workaround is constitutionally appropriate. The Essay concludes with some thoughts about the implications of workarounds for constitutional theory.
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This Essay speculates about the substance and timing of likely decisions by lower courts and the Supreme Court in dealing with issues left open by District of Columbia v. Heller. It suggests that lower courts will not address those issues by examining original understandings regarding permissible gun regulations, but will instead apply to such regulations something like an intermediate standard of review or rational basis with bite, and will rarely find unconstitutional an existing regulation of guns, short of what in practice amounts to a complete ban. It speculates as well that the Supreme Court will allow most Second Amendment issues to percolate in the lower courts, and that the Court that takes up another Second Amendment issue may well have a different composition, one less sympathetic than the present Court to gun rights. It concludes that Heller’s fate may be similar to the fate of the Rehnquist Court’s so-called Federalism Revolution—an important decision with relatively little enduring impact.
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This Essay offers a brief and highly speculative political, intellectual, and legal history of the theory of the unitary executive in the late twentieth century. I suggest that that theory developed in three stages, which I label the weak, the strong, and the super-strong versions, and confronted one alternative that superficially resembled the theory of the unitary executive but that actually served quite different political, intellectual, and legal purposes. Further, I suggest that the second stage followed the first and the third the second: The weak version was articulated on the arrival of the Reagan administration in 1981, the strong version during the late Reagan and Bush I administrations, and the super-strong version during the Bush II administration. And, finally, as those temporal linkages suggest, I will argue that each version of the theory and its alternative fit into the political agendas of these four administrations and were thought to be solutions to specific problems each administration faced.
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This essay, prepared for a conference, "Is the Constitution Obsolete?," to be held at Baruch College, City University of New York, and to be paired with an essay favoring judicial review, outlines the case against judicial review, which, it argues, contains a positive and a negative component. The positive component is this: As a general matter democracy requires almost definitionally that a polity's citizens be allowed to select their polity's policies (including policies respecting rights) either directly, as in referenda, or through mechanisms of representation that give them indirect but relatively proximate control over policy choice and that allow the people to substitute one policy for another without extraordinary political effort. Embedded in that sentence are a number of important qualifications, but one that is missing is something that reconciles democracy with constitutionalism understood as a set of political arrangements that ensures political stability by limiting the people's ability to alter some policy choices - those understood within the polity as basic - too easily. The negative component is simultaneously simpler to state and more difficult to establish. Proponents of judicial review agree that it should not be justified on the basis of arguments that would authorize courts to displace policy choice across the entire range of policy, and yet they have been unable to devise justifications that satisfy that criterion. The difficulty with the negative component is that the opponent of judicial review can work through existing justifications to show that they do not satisfy the "no universal scope" criterion but cannot eliminate the possibility that some new theory - with Ptolemaic epicycles added to existing theories, for example - might do so. The essay concludes with some observations on the implication of the fact that citizens in democracies around the world appear to accept judicial review, which raises questions for the democrat skeptic about judicial review.
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Mark Tushnet, The Meritocratic Egalitarianism of Thurgood Marshall, 52 How. L.J. 691 (2009).
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This Essay, forthcoming in the Howard Law Journal, describes Thurgood Marshall's meritocratic egalitarianism. Marshall was sensitive to the wide range of talents people actually had and was skeptical about claims that talents in any field were distributed in a steep pyramid, with many less talented at the base and only a few highly talented at the top. For him, there was a meritocratic pyramid, but it was flat rather than steep. All but the very best at most things were only slightly better and only somewhat less numerous than those who had ordinary ability in the field. Marshall was also extremely sensitive to the range of bad reasons people gave for perpetuating hierarchies ordered by ascriptive characteristics - race most obviously, but also gender, class, and disability. A real meritocracy required the elimination of all those bad reasons so that careers, broadly defined, really would be open to talent. Governments could not use ascriptive characteristics to perpetuate hierarchies that interfered with the prospect of a person pursuing a career suitable to his or her talents. And, conversely, policies aimed at eliminating the use of ascriptive characteristics to perpetuate such hierarchies - what has come to be known as affirmative action - were entirely proper. Taken as a whole, Marshall's meritocratic egalitarianism was strongly critical both of the distribution of social benefits and harms in the United States, which did not conform to meritocratic principles, and of the widespread ideas about meritocracy, which placed too much weight on differences that a real meritocrat would regard as minor. The Essay examines several of Justice Marshall's separate opinions - dissents and concurrences - to tease out of them indications of Marshall's meritocratic egalitarianism.
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Steven Teles's book, The Rise of the Conservative Legal Movement, is a case study of ideological challenge. Teles, a political scientist, emphasizes the institutional dimensions of such challenges. Relying on interviews and internal documents produced by conservative organizations, he examines the development of conservative litigating groups (i.e., conservative public interest law firms), the growth of the Federalist Society, and the embedding of law and economics within the legal academy. There have been similar studies of liberal public interest law firms and of the rise of liberal legalism in the academy, but Teles's is the first to look on the other side of the ideological divide. And, given the dominance of liberal legal ideology, his analysis brings out in sharp relief many new insights into the institutions that affect the outcomes of ideological contests. In addition, Teles connects his analysis to a broader theme in recent studies of American political development. The rise of the conservative legal movement was intimately connected to changes in the dominant political order that have occurred over the past thirty years: the decay of the New Deal-Great Society political order, and the Reagan Revolution and its limits. In these ways Teles provides a firm foundation for thinking (or perhaps merely speculating) about future developments in the institutional apparatuses associated with conservative and liberal legal thought. This Review summarizes and critiques Teles's analysis of the three components of the conservative legal movement, beginning with the least important, law and economics in the legal academy, and then turning to conservative public interest law firms and the Federalist Society. It concludes with some speculations about the future of that movement, in light of the connection Teles rightly draws between that movement and the American political regime of the late twentieth century.
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An ideal supplement for professors who wish to incorporate comparative law into their constitutional law courses, Global Perspectives on Constitutional Law introduces students to the various ways that nations other than the United States resolve contemporary constitutional questions. Covering both structural issues and individual rights, the book offers a wide but select range of readings on interesting constitutional issues in sixteen accessible chapters. Each brief chapter presents foreign case materials on a particular constitutional topic along with notes and questions that further illuminate the comparisons between U.S. constitutional law and that of other nations. Featuring selections by expert contributors from a variety of ideological and demographic backgrounds, the volume is designed to encourage students to reexamine and deepen their understanding of U.S. constitutional law in light of the alternatives offered by other systems.
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Mark Tushnet, Judicial Review, in Encyclopedia of the Supreme Court of the United States v. 2, at 60 (David S. Tanenhaus ed., 2008).
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