The Uneasy Case for the Affordable Care Act

The constitutionality of the Affordable Care Act is sometimes said to be an easy question, with the Act\u27s opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won\u27t be easy, and the arguments against it sound in law rather than politics. Written to accompany and respond to Erwin Chemerinsky\u27s essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations -- walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones. Because the mandate\u27s opponents can find some support in existing doctrines, a decision striking down the mandate needn\u27t be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress\u27s powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right -- reasons having more to do with constitutional theory than political preference

Originalism Without Text

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past

Finding Law

That the judge\u27s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a fallacy, an illusion, a brooding omnipresence in the sky. That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system. This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and its progeny. The first, positive criticism is that law has to come from somewhere: judges can\u27t discover norms that no one ever made. But this claim blinks reality. We routinely identify and apply social norms that no one deliberately made, including norms of fashion, etiquette, or natural language. Law is no different. Judges might declare a customary law the same way copy editors and dictionary authors declare standard English -- with a certain kind of reliability, but with no power to revise at will. The second, realist criticism is that this law leaves too many questions open: when judges can\u27t find the law, they have to make it instead. But uncertain cases force judges to make decisions, not to make law. Different societies can give different roles to precedent (and to judges). And judicial decisions can have many different kinds of legal force -- as law of the circuit, law of the case, and so on -- without altering the underlying law on which they\u27re based. This Essay claims only that it\u27s plausible for a legal system to have its judges find law. It doesn\u27t try to identify legal systems that actually do this in practice. Yet too many discussions of judge-made law, including the famous ones in Erie, rest on the false premise that judge-made law is inevitable -- that judges simply can\u27t do otherwise. In fact, judges can do otherwise: they can act as the law\u27s servants rather than its masters. The fact that they can forces us to confront, rather than avoid, the question of whether they should. Finding law is no fallacy or illusion; the brooding omnipresence broods on

The “Constitution in Exile” as a Problem for Legal Theory

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible? This objection is overblown. Legal rules don’t always directly reflect common agreement; they can also reflect those agreements indirectly, through conventions that operate at a higher level of abstraction. (We can have social agreement that we’re bound by the Internal Revenue Code, even though we don’t all agree on—let alone remember—everything the Code requires.) So long as we share certain conventions that lead to unconventional conclusions, out-of-the-mainstream theorists can accurately claim to describe our own legal system rather than a foreign or invented one that they hope to impose. The theorists’ job is to identify shared premises and to show that they really are shared, even in the face of widespread disagreement at the level of conclusions. In any case, if this kind of objection did have force, it wouldn’t be a problem just for out-of-the- mainstream theories like originalism. Virtually no modern legal theory accepts every change in constitutional practice as actually changing the Constitution. Because history moves at its own pace, any theory with meaningful conditions for legal change will often be violated in practice. In other words, any Constitution worth its salt will spend a good bit of time in exile

The Law and Morals of Interpretation

This report is a hermeneutic analytical study of a practical pedagogical situation. For three occasions I observed my own practice as a dance teacher and how a moment, choreographic approach in the governing documents for upper secondary school GY11 was executed in a group of dance students. The part is formulated in the course objectives for the courses on the arts program under the topic Dansgestaltning with focus on choreographic approach. The study is based on a socio-cultural thinking but also takes into account the prevailing gender theories and focuses on how the process of formulation level, through the transformation level is portrayed in the realization level of the dance regarding choreographic approach. The study illustrates educational research from both a dance perspective and a school development perspective. The intention of this study was to raise the awareness of how a pedagogical situation was designed and what is realized in the dance studio. Some pedagogical models are described as useful in raising awareness of the process and the realization of the aspect of moment in a dance studio. The methodology used for the study was participant observation and focus conversations. The results are reported in a discussion on a larger awareness of my own practice, and the benefits it can bring to learning, dancing and school development

Corruption, Clients, and Political MacHines a Response to Professor Issacharoff

Responding to Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118 (2010) In his comment on political corruption, Professor Samuel Issacharoff questions traditional accounts that aim to squeeze money out of politics entirely. Instead, he focuses on the danger that political spending will promote private influence over government policy. In this response, Professor Stephen E. Sachs argues that private influence is itself too broad a category to control, and that campaign finance policy should be restricted to a more manageable scope. Professor Sachs argues that if protecting the government from private influence is too diffuse a goal, we can at least attempt to protect the government from itself, by ensuring that it does not channel public resources into self-sustaining political machines

The Law of Interpretation

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document\u27s meaning or a drafter\u27s intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law. Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call the law of interpretation has a claim to guide the actions of judges, officials, and private interpreters -- even if it isn\u27t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system. This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional interpretation and construction, explaining how construction can go beyond the text but not beyond the law

Originalism’s Bite

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by intelligent originalists, one of us happily included, has rendered the theory incoherent and capable of supporting almost any result. We appreciate the attention, but we fear we\u27ve been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite