Herbert Wechsler shepherded the Model Penal Code to completion during the same decade (1952-1962)... more Herbert Wechsler shepherded the Model Penal Code to completion during the same decade (1952-1962) in which he wrote many of the canonical texts of Legal Process jurisprudence. Yet the connection between Wechsler’s work in criminal law and his Legal Process philosophy has received relatively little scholarly attention. In fact, as this article details, Wechsler’s approach to criminal law reform reflected all the core themes of Legal Process theory and accounts for both the Code’s overall structure and many of its doctrinal innovations. Seeing the Model Penal Code as a product of Legal Process jurisprudence helps clear away significant misconceptions about the Model Penal Code and also recasts conventional understandings of Legal Process theory itself. Though the Model Penal Code has been caricatured as overly ambitious, thoroughly utilitarian, and technocratic-elitist, the Code actually represented the modest aims, value pluralism, and democratic commitments of Wechsler and the Legal...
This article provides an intellectual history of the displacement of Legal Process theory as the ... more This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law. The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient con...
for their helpful comments and encouragement. My colleague Jeffrey Shulman provided invaluable gu... more for their helpful comments and encouragement. My colleague Jeffrey Shulman provided invaluable guidance, support, and solidarity. Kevin Loughman deserves many thanks for his research assistance. And I am immensely grateful to Daniel Solove for reading early drafts, providing helpful suggestions, and urging me to follow my interests. Needless to say, the article's shortcomings are entirely my own.
This Article addresses two fundamental questions of legal theory: Does the law provide a uniquely... more This Article addresses two fundamental questions of legal theory: Does the law provide a uniquely correct answer to each legal question? And if the answer is no, then how should a legal decisionmaker choose among multiple but conflicting legitimate legal answers? I argue that the thesis of value pluralism articulated by Isaiah Berlin (1909-1997) provides powerful answers to both questions. Value pluralism holds that there are multiple human goods and that these goods are objective, distinct, and incommensurable. It thus explains why there are some cases for which the law cannot provide a uniquely correct answer, but only a range of justifiable choices. Such cases are both legally indeterminate and shot through with incommensurable and conflicting value choices. These are tragic cases because the judge cannot help but choose one value over another and thus bring about irredeemable loss whichever option he or she chooses. What, then, is a legal decisionmaker to do when facing such a tragic case? In the second half of the article, I draw on Berlin’s endorsement of practical wisdom (or phronesis) as a constructive path toward thinking through legal decisionmaking in tragic cases. A judge facing a tragic case requires not only technical skill and theoretical wisdom, but also a capacious sensitivity to all of the context-specific facts and values at play in the case. How to cultivate such sensitivity and a corresponding sense of humility in the face of tragic cases becomes the key question of normative jurisprudence.
Glenn Reynolds has written that the “Second Amendment is now ordinary constitutional law.” I agre... more Glenn Reynolds has written that the “Second Amendment is now ordinary constitutional law.” I agree with that statement, and in this Symposium piece, I argue that the development of Second Amendment jurisprudence and Second Amendment scholarship will now suffer all of the defects that come along with the practice of ordinary constitutional law — including significant and irreducible doctrinal indeterminacy, results-driven reasoning by judges and academics, judicial self-aggrandizement, centralization of decision-making in Washington, DC, and increasing left-right socio-political polarization. All of these factors tend toward a decrease in the legitimacy and prestige of the Supreme Court and a decrease in the legitimacy and prestige of constitutional law as an academic endeavor.
for their thoughtful comments on this project and for the vital encouragement they offered. And I... more for their thoughtful comments on this project and for the vital encouragement they offered. And I am particularly indebted to Jeffrey Shulman for his crucial and patient support at every stage of the research and writing. from Extraterritoriality, 93 MINN. L. REV. 815, 820 (2009) (describing and decrying the "rise of extraterritorial domestic law"). 2 See discussion infra Parts III, IV. 3 See, e.g., ROBERT CRYER ET AL., AN INTRODUCTION TO INTERNATIONAL CRIMINAL LAW AND PROCEDURE 22 (2d ed. 2010) ("The assertion of criminal jurisdiction over a person is amongst the most coercive activities any society can undertake."); Dan E. Stigall,
To what extent does the Free Speech Clause of the First Amendment bar the adoption of "open acces... more To what extent does the Free Speech Clause of the First Amendment bar the adoption of "open access" regulations? Open access (or "net neutrality") refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County's open access ordinance unconstitutional on the grounds that it would force speech-in the form of Internet content-on to the local cable company. If the district court's analysis is correct, then open access regulations are foreclosed by the Free Speech Clause. This article argues that open access regulations are, in fact, thoroughly consistent with the First Amendment. Broadband providers maintain the kind of "bottleneck" control over Internet content that justifies regulations aimed at facilitating the free flow of information. Broadband providers are already using their strategic position to interfere in the e-commerce and video-downloading markets, and they have the power to speed up or slow down the delivery of Web-pages and other Internet applications. By breaking the broadband provider's bottleneck control over Internet content and applications, open access regulations serve the important government objectives of facilitating robust public discourse and free markets. The First Amendment does not stand in the way of this important policy proposal.
Herbert Wechsler shepherded the Model Penal Code to completion during the same decade (1952-1962)... more Herbert Wechsler shepherded the Model Penal Code to completion during the same decade (1952-1962) in which he wrote many of the canonical texts of Legal Process jurisprudence. Yet the connection between Wechsler’s work in criminal law and his Legal Process philosophy has received relatively little scholarly attention. In fact, as this article details, Wechsler’s approach to criminal law reform reflected all the core themes of Legal Process theory and accounts for both the Code’s overall structure and many of its doctrinal innovations. Seeing the Model Penal Code as a product of Legal Process jurisprudence helps clear away significant misconceptions about the Model Penal Code and also recasts conventional understandings of Legal Process theory itself. Though the Model Penal Code has been caricatured as overly ambitious, thoroughly utilitarian, and technocratic-elitist, the Code actually represented the modest aims, value pluralism, and democratic commitments of Wechsler and the Legal...
This article provides an intellectual history of the displacement of Legal Process theory as the ... more This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law. The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient con...
for their helpful comments and encouragement. My colleague Jeffrey Shulman provided invaluable gu... more for their helpful comments and encouragement. My colleague Jeffrey Shulman provided invaluable guidance, support, and solidarity. Kevin Loughman deserves many thanks for his research assistance. And I am immensely grateful to Daniel Solove for reading early drafts, providing helpful suggestions, and urging me to follow my interests. Needless to say, the article's shortcomings are entirely my own.
This Article addresses two fundamental questions of legal theory: Does the law provide a uniquely... more This Article addresses two fundamental questions of legal theory: Does the law provide a uniquely correct answer to each legal question? And if the answer is no, then how should a legal decisionmaker choose among multiple but conflicting legitimate legal answers? I argue that the thesis of value pluralism articulated by Isaiah Berlin (1909-1997) provides powerful answers to both questions. Value pluralism holds that there are multiple human goods and that these goods are objective, distinct, and incommensurable. It thus explains why there are some cases for which the law cannot provide a uniquely correct answer, but only a range of justifiable choices. Such cases are both legally indeterminate and shot through with incommensurable and conflicting value choices. These are tragic cases because the judge cannot help but choose one value over another and thus bring about irredeemable loss whichever option he or she chooses. What, then, is a legal decisionmaker to do when facing such a tragic case? In the second half of the article, I draw on Berlin’s endorsement of practical wisdom (or phronesis) as a constructive path toward thinking through legal decisionmaking in tragic cases. A judge facing a tragic case requires not only technical skill and theoretical wisdom, but also a capacious sensitivity to all of the context-specific facts and values at play in the case. How to cultivate such sensitivity and a corresponding sense of humility in the face of tragic cases becomes the key question of normative jurisprudence.
Glenn Reynolds has written that the “Second Amendment is now ordinary constitutional law.” I agre... more Glenn Reynolds has written that the “Second Amendment is now ordinary constitutional law.” I agree with that statement, and in this Symposium piece, I argue that the development of Second Amendment jurisprudence and Second Amendment scholarship will now suffer all of the defects that come along with the practice of ordinary constitutional law — including significant and irreducible doctrinal indeterminacy, results-driven reasoning by judges and academics, judicial self-aggrandizement, centralization of decision-making in Washington, DC, and increasing left-right socio-political polarization. All of these factors tend toward a decrease in the legitimacy and prestige of the Supreme Court and a decrease in the legitimacy and prestige of constitutional law as an academic endeavor.
for their thoughtful comments on this project and for the vital encouragement they offered. And I... more for their thoughtful comments on this project and for the vital encouragement they offered. And I am particularly indebted to Jeffrey Shulman for his crucial and patient support at every stage of the research and writing. from Extraterritoriality, 93 MINN. L. REV. 815, 820 (2009) (describing and decrying the "rise of extraterritorial domestic law"). 2 See discussion infra Parts III, IV. 3 See, e.g., ROBERT CRYER ET AL., AN INTRODUCTION TO INTERNATIONAL CRIMINAL LAW AND PROCEDURE 22 (2d ed. 2010) ("The assertion of criminal jurisdiction over a person is amongst the most coercive activities any society can undertake."); Dan E. Stigall,
To what extent does the Free Speech Clause of the First Amendment bar the adoption of "open acces... more To what extent does the Free Speech Clause of the First Amendment bar the adoption of "open access" regulations? Open access (or "net neutrality") refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County's open access ordinance unconstitutional on the grounds that it would force speech-in the form of Internet content-on to the local cable company. If the district court's analysis is correct, then open access regulations are foreclosed by the Free Speech Clause. This article argues that open access regulations are, in fact, thoroughly consistent with the First Amendment. Broadband providers maintain the kind of "bottleneck" control over Internet content that justifies regulations aimed at facilitating the free flow of information. Broadband providers are already using their strategic position to interfere in the e-commerce and video-downloading markets, and they have the power to speed up or slow down the delivery of Web-pages and other Internet applications. By breaking the broadband provider's bottleneck control over Internet content and applications, open access regulations serve the important government objectives of facilitating robust public discourse and free markets. The First Amendment does not stand in the way of this important policy proposal.
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