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.
Michael J. Gerhardt
In his recently published article, Tiers of Scrutiny in Enumerated Powers Jurisprudence, Professor Huq has proposed a sophisticated theory of judicial review that asks the Supreme Court in effect to allow Congress to be Congress. He argues that the Supreme Court’s “enumerated powers jurisprudence” has no principled basis in the Constitution; allows the Court to manufacture or manipulate, without good reason and with often quite negative consequences, various tiers of scrutiny; and is essentially a means or cover for judicial policy making. As an alternative to the Court’s manipulative doctrine, he suggests a “lockstep” approach requiring the Supreme Court to “jettison its use of discontinuous tiers of scrutiny and instead deploy a unitary standard of review for all of Congress’s enumerated powers.”
There is much to admire in Professor Huq’s analysis. He offers an insightful explication and critique of the Supreme Court’s landmark decisions in several fields that ought to be familiar to every law student, including the Commerce, Spending, and Taxing Powers. His focus is carefully circumscribed but his objectives are huge—including, inter alia, eliminating legislative arbitrage and facilitating greater judicial clarity, coherence, and candor. His goals are, of course, laudable, and his proposed lockstep, or single, uniform standard for the Supreme Court to use in reviewing the constitutionality of statutes bearing on federalism (federalism enactments) is intriguing and seems well designed to achieve its stated objectives.
Nonetheless, I argue in this Essay that both Professor Huq’s descriptive and normative analyses raise some serious questions, which risk undermining the utility, coherence, and appeal of his project.
View the PDF of Professor Gerhardt's Dialogue essay here.
Charles L. Barzun
The intellectual historian Professor J.G.A. Pocock once lamented that arguments about scholarly methodology often amounted to little more than telling one’s colleagues, “you should not be doing your job; you should be doing mine.” In their article, Inside or Outside the System?, Professors Eric Posner and Adrian Vermeule at first seem to escape this charge. Their point is not that you should be doing their job instead of yours; rather, you should just pick a job and do it consistently. Specifically, they argue that a good deal of legal scholarship is premised on inconsistent assumptions about what motivates governmental officials. The targets of their critique are scholars who first adopt the “external” perspective of political scientists by assuming that government officials act rationally so as to maximize their own self-interest, and then offer as a solution to the problem created by such self-interested behavior—now from the “internal” perspective of a normative legal scholar speaking to judges—a remedy whose implementation depends on governmental officials (typically judges) acting in the public’s interest rather than their own. According to the Authors, this attempt to adopt two inconsistent perspectives simultaneously results in “methodological schizophrenia.”
The Authors put their finger on a tension that arises when legal scholars make use of political science literature that is based on assumptions about what motivates official behavior, assumptions that seem at odds with those on which the offer of policy or legal advice is premised. But whether the Authors’ critique escapes Professor Pocock’s charge is not so clear. . . .
View the PDF of Professor Barzun's Dialogue essay here.
Photograph courtesy of the University of Chicago Law School
Steven Calabresi & Lauren Pope
Bradford R. Clark
Richard A. Epstein
Kurt T. Lash
John O. McGinnis
A Response to Marin K. Levy, Judging the Flood of Litigation, 80 U Chi L Rev 1008 (2013), available here.
In Judging the Flood of Litigation, Professor Marin Levy provides a novel, comprehensive, and thoughtful analysis of the nature and legitimacy of judicial floodgates arguments. Judges rely on the floodgates rhetoric—the idea that “a large number of new claims” might result from a given action—when resolving cases on their merits or to avoid even getting to the merits.
Floodgates are an exemplar of a broader category of legal tropes, here termed “trigger arguments,” that raise important questions about the scope of judicial power. These arguments focus on an act that triggers subsequent, undesired behavior. In each case, the court develops rules for monitoring or preventing the triggering act.
This Essay identifies a “fear of proliferation” as another trigger argument, one endemic to federal preemption decisions. By fear of proliferation, I mean the fear that courts express that, if a given subfederal law is permitted to survive the preemption challenge, similar laws might multiply throughout other jurisdictions, with negative consequences. While fear of proliferation arguments resemble floodgates arguments, the underlying concerns are quite distinct.
View the PDF of Professor Decker's Dialogue essay here.
Brandon L. Garrett
In Salinas v Texas, the Supreme Court eroded what little remained of the Fifth Amendment jurisprudence protecting against coercive police questioning of suspects. The result encourages precisely the types of informal, undocumented questioning that can cause false confessions and wrongful convictions. . . . The Miranda ruling—requiring the police to give a suspect the well-known warnings that “have become part of our national culture,” prior to a custodial interrogation, or risk suppression of any confession statements—had already been badly eroded, although the Court affirmed the constitutional stature of the ruling in Dickerson v United States in 2000. . . . Of what importance is the new Salinas exception, added to that litany of rulings that sharply narrowed if not “stealth overruled” Miranda? Indeed, where the vast majority of suspects readily waive Miranda rights, and where police are trained to provide Miranda warnings in a manner that encourages ready waiver, even perfect compliance with Miranda may not prevent coercion during an interrogation or contamination of false confessions. Moreover, the Court has separately done much to erode the limited protections of its highly deferential voluntariness jurisprudence. . . . Even in that badly eroded landscape, the Salinas decision has practical importance and troubling corrosive power. . . . I will develop why the very type of questioning at issue in Salinas poses special risks of eliciting false information from innocent suspects, and why police and policymakers should continue to vigilantly resist unsound interrogation practices that the Court appears to embrace.
View the PDF of Professor Garrett's Dialogue essay here.
Adam S. Chilton
Scholars have long debated whether states are obligated to follow international law. In a posthumously published article, Professor Ronald Dworkin recently contributed to this debate, arguing states have a prima facie obligation to follow international law. Professor Dworkin suggests that this obligation arises not because the international legal system is based on consent (as many have suggested), but instead because states are obligated to improve their political legitimacy, and international law can help to do so by correcting the shortcomings of the state-sovereignty system. That is, international law can help provide a check against states that would abuse their own citizens, or can help compensate for the fact that states acting alone cannot solve global problems requiring coordination. Professor Dworkin argues that this theory has the advantage of both justifying the sources of international law—such as customary international laws states cannot opt out of—and providing a principle to guide international law’s interpretation.
Professor Dworkin’s theory, however, is at best incomplete and at worst fatally flawed; it may provide an account of why international law should be binding over autocratic states that would shirk their obligations to their own citizens and others, but it does not explain why democratic states have a general obligation to comply with laws they disagree with or that are against their interest. Moreover, if the international community took Professor Dworkin’s theory of interpretation seriously, it would result in states being less willing to negotiate deep international agreements in the future.
View the PDF of Mr. Chilton's Dialogue essay here.
Andrew Gilden & Timothy Greene
In two recent decisions concerning copyright’s fair use doctrine, the Second Circuit addressed the lawfulness of incorporating one creative work into a new one. In both Cariou v Prince and Salinger v Colting, US District Judge Deborah Batts enjoined similar activity using nearly identical reasoning. But on appeal, the Second Circuit found fair use in the former and likely infringement in the latter. In this short essay, we welcome the Cariou decision’s shift away from the singular, subjective intent of the putative fair user towards a more audience-focused inquiry. When Cariou is compared with Salinger, however, we are concerned that this shift introduces a new set of distributional problems into the fair use analysis.
In particular, why does a substantial reworking of Catcher in the Rye interfere with J.D. Salinger’s “right not to authorize derivative works" while Patrick Cariou’s photographs are the “raw material” for the “well-known appropriation artist” Richard Prince? Is a use fair only if Anna Wintour, Brad Pitt, and Beyoncé are there to see it? We recognize that courts must have a means of distinguishing “transformative” uses from “market substitutes," but in doing so we hope that courts do not convert the right to rework, comment on, or otherwise engage with creative works into a privilege largely reserved for the rich and famous.
View the PDF of Mr. Gilden's and Mr. Greene's Dialogue essay here.
A Response to Jed Rubenfeld, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, 122 Yale L J 1372 (2013), available here.
In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Professor Jed Rubenfeld sets out to reinvent rape law. Instead of resting on ideals of sexual autonomy—as it currently stands—Professor Rubenfeld argues that rape law should take root in a principle of self-possession. The analysis proceeds in four parts, all lucid, all deft.
As rich and provocative as the first three movements of Professor Rubenfeld’s argument are, it is this fourth movement, the final overture, that should give the careful reader pause. Once the self-possession theory incorporates Professor Rubenfeld’s caveats, his jaunt through the labyrinth leads right back to its center: a principle of rape law that fails, in hard cases, to harmonize with intuition. The article begins by explaining why the autonomy theory cannot be squared with widely-shared intuitions about rape. And it concludes by acknowledging that the self-possession theory cannot be squared with widely-shared in-tuitions about rape. In short, both theories fail if success is defined, as Professor Rubenfeld seems to define it, as harmony between principles and preexisting intuitions.
View the PDF of Mr. Brennan-Marquez's Dialogue essay here.
Bertrall L. Ross II
A Response to Aaron-Andrew P. Bruhl and Ethan J. Leib, Elected Judges and Statutory Interpretation, 79 U Chi L Rev 1215 (2012), available here.
Should elected judges interpret statutes differently than appointed judges? The implicit answer of statutory interpretive theorists seems to be no. They typically describe their approaches to statutory interpretation in universal terms independent of the form of the institution that is taking on the task. To take two recent theories of statutory interpretation that revolutionized legal and academic thinking, when Professor William N. Eskridge, Jr. called for courts to dynamically interpret statutes to account for evolving public values, he seemed to assume that elected judges and appointed judges were equally competent to do so. When Justice Antonin Scalia advocated in his seminal book, A Matter of Interpretation, for judges to place more focus on the text of the statute and less on its legislative history, state judges, and by extension the institution of elected judges, seemed to be entirely invisible. These omissions are surprising once one considers that elected judges decide the vast majority of all cases nationwide.
Professors Aaron-Andrew P. Bruhl and Ethan J. Leib in their article, Elected Judges and Statutory Interpretation, make visible what was previously invisible: the institutional difference between elected judges and appointed judges. And they assess what this difference might mean for the interpretation of statutes. The mere introduction of this issue is worthy of praise as it opens up a promising new area for scholarly exploration. Bruhl and Leib, however, do not stop there. They also offer a balanced case for two potential views of statutory interpretation by elected judges: first, the conventional view that elected judges should interpret statutes in the same way as appointed judges—a case for interpretive convergence—and second, a case for the novel view that elected judges should interpret statutes differently from appointed judges—a case for interpretive divergence. While Bruhl and Leib are openly agnostic about the choice be-tween interpretive convergence and divergence, their analysis suggests that if pushed to choose a side, they might side with a theory of interpretive divergence. For this reason, and because of the novelty of an argument for interpretive divergence, this Essay focuses on the case for interpretive divergence.
View the PDF of Professor Ross's Dialogue essay here.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.