Monthly Archives: May 2017

Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution

Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.

Yet Klarman manages to give us a story that demands reading despite its familiarity. There are three reasons why The Framers’ Coup succeeds despite covering a subject that doesn’t lack for historical attention. First, the narrative he relates is both exhaustive and sparkling. It is encyclopedic without being an encyclopedia. The story moves along briskly because Klarman’s prose is simple and propulsive. Yet any fact that a reader would like to know about the framing and ratification of the Constitution is in here. We get the comforting reassurance of hearing well-told versions of stories we already know, such as the famous large state-small state compromise over representation in Congress. But Klarman also highlights the importance of issues that have slipped out of the traditional narrative. Only an expert in eighteenth-century political history would know of the profound effect that John Jay’s failed yearlong negotiations with the Spanish over navigation rights on the Mississippi had on the deliberations at the Philadelphia and subsequent ratifying conventions. (Klarman convincingly argues that Jay’s attempt to bargain away these rights in exchange for a favorable commercial treaty with Spain did more to engender southern fears about a powerful, northern-dominated federal government than any other issue, slavery included.) Continue reading "Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution"

Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution

Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.

Yet Klarman manages to give us a story that demands reading despite its familiarity. There are three reasons why The Framers’ Coup succeeds despite covering a subject that doesn’t lack for historical attention. First, the narrative he relates is both exhaustive and sparkling. It is encyclopedic without being an encyclopedia. The story moves along briskly because Klarman’s prose is simple and propulsive. Yet any fact that a reader would like to know about the framing and ratification of the Constitution is in here. We get the comforting reassurance of hearing well-told versions of stories we already know, such as the famous large state-small state compromise over representation in Congress. But Klarman also highlights the importance of issues that have slipped out of the traditional narrative. Only an expert in eighteenth-century political history would know of the profound effect that John Jay’s failed yearlong negotiations with the Spanish over navigation rights on the Mississippi had on the deliberations at the Philadelphia and subsequent ratifying conventions. (Klarman convincingly argues that Jay’s attempt to bargain away these rights in exchange for a favorable commercial treaty with Spain did more to engender southern fears about a powerful, northern-dominated federal government than any other issue, slavery included.) Continue reading "Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution"

Plus Ça Change

A. Tester, Use of Foreign Characters in Blog Post Titles, #EA000 J Irreproducable Results 3549 (2016).
Michael Froomkin

Michael Froomkin

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? Continue reading "Plus Ça Change"

Plus Ça Change

A. Tester, Use of Foreign Characters in Blog Post Titles, #EA000 J Irreproducable Results 3549 (2016).
Michael Froomkin

Michael Froomkin

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?

The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not?The sole purpose of this post is to test whether at c with a cedilla will work in a post title. That, is, can the title be “Plus Ça Change” or not? Continue reading "Plus Ça Change"

An Imperial Court in a Post-Colonial Context

In this age of Brexit and the existential threats facing the United Kingdom, I find myself drawn to literature addressing the legacy of the British Empire. And in their new article, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, Tracy Robinson and Arif Bulkan analyze a vestigial British imperial court, the Judicial Committee of the Privy Council (JCPC), in a post-colonial context. Law professors at the University of the West Indies, the authors examine the JCPC’s approach to constitutional interpretation through detailed analysis of its cases addressing Caribbean bills of rights. The article succeeds in highlighting significant questions about the JCPC’s legitimacy and function and provides insight into the very serious challenges presented by judging from a distance in a changing jurisdictional landscape.

The Judicial Committee of the Privy Council is a relic of the British colonial empire. During the imperial period, it evolved into the final court of appeal for roughly one quarter of the world’s population. Now, it hears appeals from a tiny number of former colonies, current UK territories, and Crown dependencies. The Anglophone Caribbean is at the core of the JCPC’s workload: In addition to the six overseas territories in the region, eight of the twelve independent Caribbean states send appeals to the JCPC, having retained its services following decolonization. Yet, rather than acting as an individualized apex court to the numerous intermediate courts over which it has jurisdiction, the JCPC instead has developed into a transnational or supranational court; its binding precedent can be applied across national jurisdictions. Of the 500 or so “Privy Counsellors” (the British cabinet members, politicians, clergymen, etc.) that advise the Monarch as members of the Privy Council, the Judicial Committee is staffed by a judicial subset comprising justices of the UK Supreme Court as well as judges of the various courts of appeal in England and Wales, Scotland, and Northern Ireland. Judges from some Commonwealth countries are eligible to sit on the JCPC, but only a few Caribbean judges have been appointed as Privy Counsellors, and those who were appointed were rarely empaneled on JCPC Boards (the groups of three or five judges that hear cases). Continue reading "An Imperial Court in a Post-Colonial Context"

An Imperial Court in a Post-Colonial Context

In this age of Brexit and the existential threats facing the United Kingdom, I find myself drawn to literature addressing the legacy of the British Empire. And in their new article, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, Tracy Robinson and Arif Bulkan analyze a vestigial British imperial court, the Judicial Committee of the Privy Council (JCPC), in a post-colonial context. Law professors at the University of the West Indies, the authors examine the JCPC’s approach to constitutional interpretation through detailed analysis of its cases addressing Caribbean bills of rights. The article succeeds in highlighting significant questions about the JCPC’s legitimacy and function and provides insight into the very serious challenges presented by judging from a distance in a changing jurisdictional landscape.

The Judicial Committee of the Privy Council is a relic of the British colonial empire. During the imperial period, it evolved into the final court of appeal for roughly one quarter of the world’s population. Now, it hears appeals from a tiny number of former colonies, current UK territories, and Crown dependencies. The Anglophone Caribbean is at the core of the JCPC’s workload: In addition to the six overseas territories in the region, eight of the twelve independent Caribbean states send appeals to the JCPC, having retained its services following decolonization. Yet, rather than acting as an individualized apex court to the numerous intermediate courts over which it has jurisdiction, the JCPC instead has developed into a transnational or supranational court; its binding precedent can be applied across national jurisdictions. Of the 500 or so “Privy Counsellors” (the British cabinet members, politicians, clergymen, etc.) that advise the Monarch as members of the Privy Council, the Judicial Committee is staffed by a judicial subset comprising justices of the UK Supreme Court as well as judges of the various courts of appeal in England and Wales, Scotland, and Northern Ireland. Judges from some Commonwealth countries are eligible to sit on the JCPC, but only a few Caribbean judges have been appointed as Privy Counsellors, and those who were appointed were rarely empaneled on JCPC Boards (the groups of three or five judges that hear cases). Continue reading "An Imperial Court in a Post-Colonial Context"

Philosophy of Language and Legal Interpretation

Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics, forthcoming 2017), available at SSRN.

Law is pervasively interested in the proper understanding and application of texts: contracts, wills, trusts, agency regulations, statutes, constitutional provisions, etc.  Legal interpretation is obviously central to legal practice, and it is not surprising that legal scholars would come to look to literary interpretation and philosophy of language for insight. The discussion of literary interpretation, and what lawyers, legal scholars, and judges might learn from it, has been one of the themes of the Law and Literature movement. The recourse to philosophy of language has been slower and less well publicized; however, there is now a growing literature applying philosophy of language to problems in law (e.g., Alessandro Capone & Francesca Poggi (eds.), Pragmatics and Law (Springer, 2016); Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law (Oxford, 2011)).

Brian Slocum is one of the most important scholars working at the intersection of legal interpretation and philosophy of language, as exemplified by his recent book, Ordinary Meaning (University of Chicago, 2015). In that book, Slocum contrasted one of judges’ favorite touchstones when interpreting documents, “ordinary meaning,” with the idea of “communicative meaning.” In the present article, Pragmatics and Legal Texts, Slocum offers a parallel contrast: between “literal meaning” and “communicative meaning.” To understand the “literal meaning” of a text or statute, one need only understand the meanings of each constituent term and how they fit together grammatically and logically to express a proposition. This process is meant to be independent of any considerations of the context of utterance. The article defines “communicative meaning” differently, as “what an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context.” (P. 2, footnote omitted.) This meaning can differ from the literal meaning because communication is a cooperative activity, which presupposes several further norms that can affect the communicative meaning of a statute or text in the context of utterance. Continue reading "Philosophy of Language and Legal Interpretation"

Philosophy of Language and Legal Interpretation

Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics, forthcoming 2017), available at SSRN.

Law is pervasively interested in the proper understanding and application of texts: contracts, wills, trusts, agency regulations, statutes, constitutional provisions, etc.  Legal interpretation is obviously central to legal practice, and it is not surprising that legal scholars would come to look to literary interpretation and philosophy of language for insight. The discussion of literary interpretation, and what lawyers, legal scholars, and judges might learn from it, has been one of the themes of the Law and Literature movement. The recourse to philosophy of language has been slower and less well publicized; however, there is now a growing literature applying philosophy of language to problems in law (e.g., Alessandro Capone & Francesca Poggi (eds.), Pragmatics and Law (Springer, 2016); Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law (Oxford, 2011)).

Brian Slocum is one of the most important scholars working at the intersection of legal interpretation and philosophy of language, as exemplified by his recent book, Ordinary Meaning (University of Chicago, 2015). In that book, Slocum contrasted one of judges’ favorite touchstones when interpreting documents, “ordinary meaning,” with the idea of “communicative meaning.” In the present article, Pragmatics and Legal Texts, Slocum offers a parallel contrast: between “literal meaning” and “communicative meaning.” To understand the “literal meaning” of a text or statute, one need only understand the meanings of each constituent term and how they fit together grammatically and logically to express a proposition. This process is meant to be independent of any considerations of the context of utterance. The article defines “communicative meaning” differently, as “what an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context.” (P. 2, footnote omitted.) This meaning can differ from the literal meaning because communication is a cooperative activity, which presupposes several further norms that can affect the communicative meaning of a statute or text in the context of utterance. Continue reading "Philosophy of Language and Legal Interpretation"

Unevenly Cooked: Raw Materials and Fair Use

Andrew Gilden, Raw Materials and the Creative Process, 104 Geo. L.J. 355 (2016).

Over the past decade or two, intellectual property scholars have learned to pay attention to the rhetoric that people use when arguing and advocating. In particular, many scholars have challenged the use of property rhetoric about “owning” and “stealing” by those seeking expanded IP protection. According to these scholars, this rhetoric has the potential to pump inappropriate moral intuitions and to distort the utilitarian analysis that is supposed to guide IP policymaking.

Andrew Gilden’s recent article shares this interest in the language of IP, but he trains his sights instead on the rhetoric used by those seeking to limit the scope of copyright protection and to expand fair use. Although Gilden is, I think, sympathetic with their project, he demonstrates how one metaphor—whether the plaintiff’s work was used as “raw material” in the defendant’s work—can have pernicious effects on the kinds of artists that are insulated by fair use law. Continue reading "Unevenly Cooked: Raw Materials and Fair Use"

Unevenly Cooked: Raw Materials and Fair Use

Andrew Gilden, Raw Materials and the Creative Process, 104 Geo. L.J. 355 (2016).

Over the past decade or two, intellectual property scholars have learned to pay attention to the rhetoric that people use when arguing and advocating. In particular, many scholars have challenged the use of property rhetoric about “owning” and “stealing” by those seeking expanded IP protection. According to these scholars, this rhetoric has the potential to pump inappropriate moral intuitions and to distort the utilitarian analysis that is supposed to guide IP policymaking.

Andrew Gilden’s recent article shares this interest in the language of IP, but he trains his sights instead on the rhetoric used by those seeking to limit the scope of copyright protection and to expand fair use. Although Gilden is, I think, sympathetic with their project, he demonstrates how one metaphor—whether the plaintiff’s work was used as “raw material” in the defendant’s work—can have pernicious effects on the kinds of artists that are insulated by fair use law. Continue reading "Unevenly Cooked: Raw Materials and Fair Use"

Unpacking the Shortcomings of the Vaccine Injury Compensation Program

Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Penn. L. Rev. 1631 (2015).

The National Childhood Vaccine Injury Act of 1986 established the Vaccine Injury Compensation Program (“VICP”) as a replacement regime for vaccine-related injuries. The VICP is funded by a seventy-five cent tax on each vaccine dose. Individuals alleging vaccine-related injuries file a petition, which is adjudicated by a special master of the U.S. Court of Federal Claims. Petitioners may seek damages for, inter alia, health care and rehabilitation costs (past and anticipated), though damages for pain and suffering or death are capped at $250,000. The law provides broad legal immunities for vaccine manufacturers, including preemption of tort claims for design or warning defects. In 2011, the U.S. Supreme Court interpreted the preemption provision to include design defects where the vaccine manufacturer failed to incorporate a safer alternative design.

The VICP maintains a Vaccine Injury Table that lists compensable injuries—these are deemed “on-table” injuries, and causation is presumed. All other injuries are deemed “off-table” injuries, and petitioners have the burden of proving causation. This distinction is significant; between 1999 and 2014, six vaccines were added to the table, and none had an on-table injury. During that same time period, the percent of petitions alleging off-table injuries increased from 25% to 98%. Importantly, the statute does not mandate that the data needed to meet the causation bar be collected by manufacturers or disclosed to the public; moreover, FDA regulations have not filled this legal gap. To the contrary, as officials from the FDA and CDC explain, “no active effort is made to search for, identify and collect information [on vaccine adverse events], but rather information is passively received from those who choose to voluntarily report.” Given the challenges in demonstrating causation and the lack of data to analyze causation, the net result is a large decrease in awarded claims and a large increase in uncompensated harms.

There can be no question that vaccines are a public health triumph. At the same time, however, with statistical certainty a small number of vaccinees will suffer catastrophic injuries or death. As health policy expert Michelle Mello has argued, vaccinations involve a high stakes gamble where the overwhelming majority will benefit but no one knows (or can predict with reliable certainty) who will suffer harm. Over the past three decades the VICP has adjudicated over 14,000 petitions, and thus there is ample data from which to evaluate the VICP. Herein steps Nora Freeman Engstrom. Her article, A Dose of Reality for Specialized Courts: Lessons from the VICP, is an elegant and comprehensive investigation of the VICP, and her findings highlight several troubling trends. Continue reading "Unpacking the Shortcomings of the Vaccine Injury Compensation Program"