Dialogue
The University of Chicago Law Review Dialogue is the new source for online content published by The University of Chicago Law Review. Beginning in 2013, The University of Chicago Law Review proudly continues its heritage of providing cutting-edge and topical legal scholarship to the legal community through publishing online exclusive articles. This online platform will bring leading academics from around the legal community together to discuss recent scholarship and current events impacting the legal field. The name Dialogue was inspired by the purpose of this platform, to inspire a genuine and timely exchange of ideas in legal scholarship. Through Dialogue, The University of Chicago Law Review looks forward to cultivating a new process by which academics and practitioners can teach, learn, and inspire in much the same way that law reviews have inspired scholarly dialogues for generations. We sincerely await the dialogues to come.
Improvidently Granted: Why the En Banc Federal Circuit Chose the Wrong Claim Construction Issue
Greg Reilly
The Federal Circuit recently granted en banc review to determine whether district court interpretations of patent claims should continue to be reviewed de novo or should be subject to deferential review. The Federal Circuit chose the wrong claim construction issue to address en banc. Resolving the proper standard of review will not improve claim construction, and may not even be possible, without first resolving the Federal Circuit’s deep and persistent schism over the basic methodology for claim construction. Moreover, the Federal Circuit’s choice to review the standard of review issue first distracts attention from the far more important methodological split, gives false hope that deferential review will cure all that ills claim construction, and could surreptitiously impact the methodological dispute. The wisest course is for the Federal Circuit to dissolve the en banc proceedings as improvidently granted. At the very least, the Federal Circuit should resolve the standard of review issue on the narrowest ground possible.
View the PDF of Mr. Reilly's Dialogue essay here.
"Secular Purpose," Accommodations, and Why Religion Is Special (Enough)
Thomas C. Berg
A Response to Micah Schwartzman, What If Religion Is Not Special?, 79 U Chi L Rev 1351 (2012), available here.
I did Professor Micah Schwartzman’s What If Religion Is Not Special? frames important questions under the First Amendment’s Religion Clauses and sets forth useful analytical categories. I question some of his major conclusions, but the road he travels to reach them is worthwhile.
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I agree with much of What If Religion Is Not Special?, but I think that Professor Schwartzman overstates two of his main conclusions. The first is his claim that inclusive accommodation is inconsistent. A theory may coherently treat religion as special for some purposes and not others. In particular, it is perfectly consistent to support religious accommodations while concluding that any constitutional restrictions on religion as a grounding for secular laws should be minimal, perhaps nonexistent. Second, the charges of unfairness in treating religion and nonreligion differently are also overstated. Religion has distinguishing features that justify treating it distinctively. We can extend such treatment to systems that share the same features but have not traditionally been called religious, but the extension should be limited—more limited, so far as I can tell, than Professor Schwartzman proposes.
View the PDF of Professor Berg's Dialogue article here.
Tushnet's Lawless World
Richard A. Epstein
A Response to Mark Tushnet, Epstein's Best of All Possible Worlds: The Rule of Law, 80 U Chi L Rev 487 (2013), available here.
I did not pick this unfortunate fight, but it is my regrettable task to have to respond to Professor Mark Tushnet’s Review of my book Design for Liberty: Private Property, Public Administration and the Rule of Law. Professor Tushnet regards Design for Liberty as a quixotic endeavor to reform the world, worthy of Glenn Beck, driven by a political naiveté that reminds him of an improbable cross between Candide and Mr. Micawber. Throughout his Review, he uses his not inconsiderable rhetorical skills to mock a book whose message and argument he does not understand.
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Professor Tushnet’s crippling weaknesses leave him unable to grasp the mission of the book, which uses the lens of private law to integrate the three elements set out in its subtitle: private property, public administration, and the rule of law. Here, as in my short book, it is not possible to develop in-depth positions that I have written about at length elsewhere. Yet the only way to explain the larger picture is to place some of the particulars that have been examined elsewhere into the background. Nonetheless, in this short response, I hope to give some indications as to how this program can be carried out.
To do so, it is useful to address four issues. The first of these deals with Professor Tushnet’s misguided views on the plasticity of language and its relationship to the rule of law. The second explains how best to establish empirically the connection between a content-neutral rule-of-law standard and the classical liberal synthesis of private property, contractual freedom, and limited government. The third addresses the interrelationship between per se rules and reasonableness standards, contrasting the classical liberal approach with the modern realist one, in the context of common law decision making and government regulation. The fourth uses this approach to examine some particular issues on which the folly of Professor Tushnet’s views becomes clear. These include his failure to understand the basic structure of intellectual property law; his inability to understand the distinction between health and safety regulation on the one side, and economic regulation on the other; the baleful consequences for judicial administration that this breakdown has in connection with land use development; and his unpardonable constitutional insensitivity to the exercise of religion in public institutions.
View the PDF of Professor Epstein's Dialogue article here.
Religion's Specialized Specialness
Andrew Koppelman
A Response to Micah Schwartzman's, What if Religion Is Not Special?, 79 U Chi L Rev 1352 (2012), available here.
The basic elements of contemporary Religion Clauses doctrine have hidden in plain sight. American law treats religion as a distinctive human good but protects it from political manipulation by denying the state the power to take sides on any theological question. This approach entails rules of disestablishment, such as the secular purpose requirement, which prevent the government from using coercive laws to proclaim religious truth. It also entails that it is permissible for the legislature to recognize religion’s value by accommodating it. American law insists (with an important exception, which I’ll discuss) on neutrality among religions. Its understanding of “religion” is calculatedly vague, allowing it to accommodate claims of conscience that sufficiently resemble religious claims. (…) Because scholars regard existing law with contempt, they have spent most of their efforts engaging with each other. An alternate universe of theoretical possibilities has developed, a battleground of competing visions of the Religion Clauses. In this world, American law sometimes goes unnoticed altogether.
Micah Schwartzman is one of our finest young scholars of law and religion and has brought sophisticated philosophical analysis to some perennial problems. His analytical skills are conspicuously on display in What If Religion is Not Special? He carefully anatomizes a number of competing positions in the law review literature and shows the weaknesses of each, leaving himself with, as he puts it, an “intellectual ache”: it appears to him that the commitments of our constitutional regime cannot be justified. His article is a valuable contribution. But it can mislead the reader because, as in so much literature in this field, the actual law of the United States escapes his vision.
View the PDF of Professor Koppelman's Dialogue article here.
The Illegal Process: Basic Problems in the Making and Application of Censorship
James Grimmelmann
A Response to Derek E. Bambauer, Orwell's Armchair, 79 U Chi L Rev 863 (2012), available here.
The principal question for consideration is whether the United States should enact “[a] statute enabling censorship of Internet material” along the lines described in Bambauer, Orwell’s Armchair. The article will not be reproduced here, although it rewards careful reading. Rather, the present emphasis will be on certain structural features of Professor Bambauer’s argument, with particular reference to some of the institutional issues they raise.
Professor Bambauer’s subject is Internet filtering: how governments do it, what forces constrain it, and what is to be done about it. The essential characteristic of such filtering is that Internet intermediaries—Internet service providers like Comcast and Verizon, search engines like Google and Bing, do-main name providers, and the like—design their systems to make some content inaccessible. Professor Bambauer unapologetically describes this filtering as “censorship.” What justifies the term? Is it simply a matter of linguistic precision, or does the term have a rhetorical force of its own? Given that he is proposing a censorship statute, what explains his willingness to embrace this ordinarily pejorative term?
View the PDF of Professor Grimmelmann's Dialogue article here.
Interpretive Divergence All the Way Down
Anita S. Krishnakumar
A Response to Aaron-Andrew P. Bruhl and Ethan J. Lieb, Electing Judges and Statutory Interpretation, 79 U Chi L Rev 1215 (2012), available here.
Debates about methodological consensus are emerging as a hot topic in statutory interpretation scholarship. Recent articles in the field have explored whether judges are capable of following a unified interpretive methodology—and whether they should do so. The dominant normative view has been that methodological consensus is a desirable goal that would serve important rule of law values such as predictability and clarity. But Professors Aaron Bruhl and Ethan Leib have offered important resistance to this view, arguing that interpretive diversity improves the quality of deliberation about statutory meaning and that different interpretive techniques may be appropriate for different courts depending on variations in judicial resources, a court’s place in the judicial hierarchy, and judicial selection methods. In Elected Judges and Statutory Interpretation, these two authors join forces to consider the novel possibility that elected judges can, and perhaps should, interpret statutes differently than their appointed counterparts.
Rather than rush to judgment on Professors Bruhl’s and Leib’s fledgling idea—particularly given the authors’ own agnosticism and exploratory approach—I wish to focus on an intriguing corollary question raised by their analysis. That is, if one takes seriously the proposition that it may make sense for elected judges to interpret statutes differently than do appointed judges, should judicial opinions written by elected judges look substantially different from those written by appointed judges? There are several levels on which this question operates. The first is substantive: In what ways should elected judges’ democratic pedigree affect their interpretive method in deciding cases? Professors Bruhl and Leib engage this question to some extent, suggesting that, under certain circumstances, elected judges may be entitled to exercise greater interpretive independence than their appointed counterparts. The second level is procedural: How, if at all, should the manner in which elected judges explain their reasoning in judicial opinions differ from how appointed judges explain their reasoning? Put differently, should elected judges write their opinions to speak primarily to the voting public as an audience rather than to lawyers and other judges? If we think that the answer to that question could be yes, in what ways might we want or expect elected judges’ opinions to differ from those written by their appointed counterparts? And third: Should elected judges abandon certain interpretive tools—or use them differently—than appointed judges?
View the PDF of Professor Krishnakumar's Dialogue article here.
Good Pollution
John Copeland Nagle
A Response to Arden Rowell, Allocating Pollution, 79 U Chi L Rev 985 (2012), available here.
Professor Nagle considers the regulatory implications of the insight that what is considered "pollution" to some could be beneficial or desirable to others. He builds on Professor Arden Rowell’s insight that the harmfulness of pollution is not always directly related to exposure to pollution and argues that Rowell could go further. In doing so, Professor Nagle emphasizes the existence of another group of pollutants that are harmful and beneficial at the same time and in the same quantity. What some regard as a harmful pollutant is valued by others as providing a valuable benefit. Professor Nagle goes on to argue that the phenomenon of “good pollution” is even more common outside the context of environmental pollution, in areas like sensory pollution and cultural pollution. In addressing these concerns, Professor Nagle concludes that a different set of responses is needed for good pollution because the goal is not simply to “reduce the harm caused by pollution.” The response to good pollution must seek to preserve its benefit as well as reduce its harm.
View the PDF of Professor Nagle's Dialogue article here.
Orwell's Metaphors
David G. Post
A Response to Derek E. Bambauer, Orwell's Armchair, 79 U Chi L Rev 863 (2012), available here.
Here, as I understand it, is “The Internet According to Professor Derek E. Bambauer.” Governments will engage in censorship of Internet content. This is normatively troubling but descriptively undeniable. The autocrats and dictators, of course, will take the lead, hard at work at their censorship machines. But it’s not just the autocrats and dictators; even countries with well-developed democratic governance processes (like our own), and well-developed protections for dissident or otherwise controversial speech (like our own) will do so. Indeed, most (like our own) have already begun to do so, and they are unlikely to stop anytime soon. Not all of this Internet censorship is in pursuit of (normatively) illegitimate goals (for example, suppressing political dissent); if we strip the term of its “pejorative connotation[s]” and define it simply as occurring whenever “a government prevents communication between a willing speaker and a willing listener through interdiction rather than through post-communication sanctions,” some “censorship” pursues perfectly legitimate goals (for example, protecting the rights of copyright holders, or . . .). Governments have many diverse tools at their disposal for what Professor Bambauer calls “hard censorship” (techniques involving “direct control or deputizing intermediaries” where “the state imposes its content preferences directly, either by implementation through computer code or by force of law”) and for “indirect,” or “soft,” censorship (“pretext, payment, and persuasion,” where “the state’s intervention is far less visible and direct”). They are very creative in deploying these tools.
View the PDF of Professor Post's Dialogue article here.
US Risk Assessment Policy: A History of Deception
Edward J. Calabrese
A Response to Arden Rowell, Allocating Pollution, 79 U Chi L Rev 985 (2012), available here.
Strategies to limit the general public’s exposure to toxic substances—via national standards such as community-based drinking water and air quality standards, food residue regulations, hazardous-waste siting decisions, or other strategies—are based on multiple factors including social, political, cultural, historical, economic, technological, as well as public health–related concerns. At the core of these decisions is the need for risk assessment estimates to be based on a sound foundation, using scientifically validated procedures and having high reliability. However, while it may be hard to believe, and even more difficult to accept, the foundation of our fundamental dose-response model—that is, the threshold dose-response—upon which all public health standards were originally based, and upon which we still highly depend, was never validated by the regulatory and scientific communities prior to its adoption by the FDA, EPA, OSHA, and other agencies in the United States and elsewhere in the world.
View the PDF of Professor Calabrese's Dialogue article here.
Invisible Lawmaking
Barak Orbach
Private lawmaking is an ordinary rent-seeking activity of interest groups: the pursuit of self-interest through regulation. Familiar examples of private lawmakers include the National Rifle Association (NRA), the American Legislative Exchange Council (ALEC), and the National Motion Picture Association of America (MPAA). Motivated private lawmakers take advantage of imperfections in the marketplace of ideas and utilize such imperfections to obscure their visibility. The US Supreme Court’s marketplace of ideas theory denies market imperfections and presumes prefect competition in the marketplace. This presumption rests on the Court’s firm premise that the pursuit of self-interest necessarily serves the public. Resting on this unqualified confidence in the pursuit of self-interest, in Citizens United v Federal Election Commission the Supreme Court has empowered interest groups, strengthening their influence over public lawmakers. This Essay describes how the Supreme Court’s confidence in the inherent value of the pursuit of self-interest has weakened democratic institutions, arming interest groups with effective means to draft the law of the land, while circumventing the public discourse and shortcutting open debates.
View the PDF of Professor Orbach's Dialogue article here.