Our Divine Constitution

I am pleased to announce the publication of Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).

The presumption that God is omnibenevolent—inherently just, wise, kind, and merciful—is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoke of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself. In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.

As always, I'd love you feedback.

Publication Announcement

I'm pleased to announce my paper, Sticky Slopes, has been accepted for publication in Volume 101 of the California Law Review (forthcoming 2013).

Publication Announcement

David Schraub, Comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement, 77 U. Chi. L. Rev. __ (forthcoming 2010).

Sticky Slopes Draft Posted

You can download the full text of the draft at my SSRN page. Below is the abstract:

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion at grappling with the problem of inequality to seemingly little effect. I argue that attentiveness to sticky slopes is important for two reasons. First, awareness of the prospect of a sticky slope can be important in long term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision.

I'll be presenting this paper at the 2010 Law and Society Conference this May, in a panel entitled "Social Change in Unexpected Ways". The discussant is scheduled to be Gerald Rosenberg, Lecturer in Law and Associate Professor of Political Science at the University of Chicago, and author of The Hollow Hope: Can Courts Bring About Social Change? Any comments you have are greatly appreciated. And I might note, in blogging solidarity, that this paper originally was a blog post I wrote back in May of 2008.

Is Libertarian Paternalism Consistent with Parternalist Principles?

Thanks to Marc Randazza linking to my blog post from last month about whether libertarian paternalism is libertarian, I feel obligated to make the promised follow-up post on whether libertarian paternalism is consistent with paternalist values.

Unlike libertarians, paternalists do not place nearly as high a premium on true freedom of choice. This should not come as a surprise, since the very philosophy used to justify paternalist policies is that individuals often do not know what is best for themselves, and thus a more enlightened third party should take their choice away and make the "right" decision for them. Therefore, paternalists may not be concerned if employers, educational institutions, or other third parties coerce adults into self-binding programs for their own good.

But is the third party coercion that may result from a libertarian paternalist regime actually consistent with paternalist principles? One must look at the movies of these third parties to determine whether they are truly acting in a paternalist fashion. Liberty University, for instance, appears to have created its rules for a purpose other than helping adults make the right decisions, stating that it has instituted its honor code to "promote a positive Christian community," and one would expect this same rationale to apply if the state of Virginia created a self-binding tobacco criminalization regime and Liberty required its students to opt-in. Though Liberty University may ultimately force its students to make the "right" decision through its actions, one cannot say that Liberty is actually engaging in paternalism, for in such a scenario Liberty would be primarily furthering its own interests rather than those of its students.

Potential coercion in the employment setting, however, provides an even stronger example of how the practical effects of libertarian paternalism may be inconsistent with the ideals of paternalism. As the Georgia gun situation demonstrates, businesses, as profit-maximizing entities, will generally place profitability over ideology or other concerns when making business-related decisions. The Georgia businesses in question--many of whom sell guns in their stores, and whose owners may themselves believe in the right to bear arms--have not banned their employees from keeping guns in their parked cars because of anti-gun animus or a belief that they are helping their employees make the "right" decision, but because insurance companies charge significantly higher premiums when employers allow this practice. Likewise, insurance companies do not charge employers these higher rates out of animus or a desire to help businesses and their employees make "smart" choices, but because their research has shown that businesses that allow guns provide a greater risk than the general population of businesses and thus must pay higher premiums to ensure that the insurance company remains profitable.

In the gun case, as well as a hypothetical smoking or gambling self-binding program, employers and their insurers would coerce employees into certain decisions not because they are enlightened decision makers, but because their own self interests require it. Though employers and insurance companies acting in their own self interests may result in outcomes that overlap with the actual best interests of employees, the process is not consistent with paternalist ideology, which assumes a benevolent, enlightened third party whose primary objective is furthering the interest of those who, for whatever reason, are unable to make the best decisions for themselves. For this reason, libertarian paternalism is not consistent with paternalist values or ideals.

Is Libertarian Paternalism Libertarian?

As mentioned yesterday, Cass Sunstein is currently guest blogging on the topic of libertarian paternalism at the Volokh Conspiracy. In his introductory post, Professor Sunstein summarizes his idea as follows:

The basic idea is that private and public institutions might choose approaches that a) fully maintain freedom of choice (and are in that sense libertarian) but b) gently steer people's decisions in directions that will make their lives go better by their own lights (and are in that sense paternalistic).

The New York Times has even more succinctly summed up the concept as "[y]ou know what's best for you, and we'll help you do it," with the government adopting policies to "nudge [people] in the right direction." Perhaps the most high profile, and controversial, examples of this involve self-binding schemes such as those adopted in Michigan and Missouri, which allow individuals to voluntarily place themselves on casino gambling blacklists, with state governments then enforcing those voluntary bans by criminally prosecuting violators and confiscating their winnings. Proponents of the libertarian paternalist approach have advocated adopting such self-binding schemes to solve a wide range of other issues, including combating cigarette and alcohol consumption.

For a variety of reasons, I disagree with Professor Sunstein that libertarian paternalism--at least in the form of self-binding schemes--are viable vehicles to address these issues. This post, however, will focus on whether libertarian paternalism actually maintains freedom of choice or otherwise promotes libertarian values.

Libertarians such as Jacob Sullum and myself oppose governmental bans on smoking and other vices on philosophical grounds. As Sullum observes in his book, such bans are "an odious intrusion by the state into matters that should remain private." Essentially, Sullum and other libertarians believe that adults are well aware of the dangers involved in smoking, gambling, and similar activities, but "for the sake of pleasure, utility, or convenience" have chosen "to accept the risks."

Libertarian paternalism as formulated by Sunstein acknowledges the veracity of this perspective, and recognizes that the government should not eliminate an adult's freedom to engage in risky behavior, even when such choices may not result in what the government perceives as the ideal outcome. But do self-binding programs--for instance, a system that would allow an individual to place himself on a tobacco blacklist in perpetuity--truly preserve the libertarian value of freedom of choice? I argue that they do not.

Proponents of libertarian paternalism wrongly assume that government provides the only constraint on adult behavior, and thus an individual who opts-into a system where smoking, gambling, or other vices are criminalized has done so because his present-self wishes for the government to control his future-self by placing constraints on his behavior. But this framework fails to consider the role of powerful third parties--such as an individual's employer or educational institution--who often wield enough influence to coerce individuals to sign away their legal rights.

There is no doubt that these third parties already place significant limitations on an adult's legal rights in a number of contexts. Liberty University, for instance, considers use of tobacco products as a violation of its honor code, which can result in fine, reprimand, and--if enough reprimands are accumulated--suspension or even expulsion. In the employer context, the National Rifle Association and other advocacy groups have recently drawn attention to many large Georgia employers, such as Wal-Mart, that forbid their employees from keeping guns in their parked cars while at work.

Such limitations on legal rights by educational institutions and employers are not significantly obtrusive or reduce freedom of choice to a great extent. After all, a cigarette smoker does not have to enroll in Liberty University, and even if subjected to reprimand such an individual can transfer to another school, one where he would retain the right to use tobacco products off-campus. Similarly, an employee who runs awry of Wal-Mart's gun ban may seek employment elsewhere--and in the worst case scenario, at least has the opportunity to choose unemployment and keeping a gun in one's car over employment and leaving a gun at home.

But libertarian paternalism programs create a danger of those same third parties curtailing an individual's freedom in perpetuity. Liberty University, for instance, may require as a condition of enrollment that a student opt-into a system where possessing tobacco is illegal and subject to criminal prosecution, even long after a student has separated from the college. Perhaps more significantly, large groups of third parties, such as employers, may require such opt-ins as a condition of employment, thus forcing individuals to give up activities such as gambling forever if they wish to earn a living in a given state. In effect, employers, schools, and other third parties would outsource enforcement of their internal policies to the state--hardly a libertarian concept.

The faults with the libertarian paternalist philosophy are not limited to libertarian paternalism's fundamental tension with libertarian principles. In my next blog post, I will argue that libertarian paternalism is also not consistent with paternalist principles.

Don't Take The Bait

On the recent Medellin decision, Orin Kerr: "I predict at least a handful of student case comment titles in 2009 that will try to make use of the similarities between the defedant's name and the word "meddling." (For example, "Meddling With the Treaty Power in Medellin," etc.).

He's right, of course, but for the love of God, do not do this. Just. Don't.

Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas

The current draft of my latest paper, titled Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas, is now available here at SSRN.

David's J.L. & Cool Stuff (Vol. 4)

Adeno Addis, The Concept of Critical Mass in Legal Discourse, 29 Cardozo L. Rev. 97 (2007)

Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L. Rev 223 (2007)

Brent T. White, Say You're Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 Cornell L. Rev 1261 (2006)

I'm #9!

According to SSRN download statistics for the past two months (May 11th to July 10th), my article is ranked #9 in downloads among all articles in the Law & Society: Public Law section. It reached that lofty position with 58 downloads.

The article, in case you've forgotten, is entitled When Separation Doesn't Work: The Religion Clauses as Anti-Subordination Principles, and it is forthcoming soon in the Dartmouth Law Journal. Thanks to everybody who has read and commented on it.

Do Law Reviews Matter?

So asks CONNtemplations, the Connecticut Law Review's online supplement, which has just posted some very interesting essays examining this question.

I will try to post some thoughts on these essays sometime in the coming weeks (bar prep permitting), particularly since a few authors have engaged some of my earlier arguments regarding law reviews and online supplements. In the meantime, you can access the essays here.

Hat tip: Prawfs.

Student Publishing Opportunity in Penn Law Review

Topic: The Class Action Fairness Act of 2005
Deadline: September 15, 2007

PDF flyer available here.

Hat tip: Concurring Opinions.

Horowitz on Anonymous Internet Defamation

Steven J. Horowitz has uploaded a short essay, titled Defusing a Google Bomb, to SSRN. Here's the abstract:

Anonymous internet defamation is nothing new, but the recent Autoadmit controversy highlights one particularly difficult aspect of this problem: Google bombing. As private individuals are defamed on popular anonymous message boards, searches on Google and other engines return the defamatory posts as top hits for those individuals. This short essay suggests a notice and takedown solution modeled after the DMCA's similar provisions. I argue that such a solution is much more effective for the Google bomb problem than for copyright infringement because the parties involved are much more likely to have similar legal resources than in copyright disputes.

I can't say I fully agree with this proposal, or even the idea that we need legislation to deal with this problem. However, I think he's correctly identified the real problem here: the problem isn't the defamatory speech itself, but search engines, and I can't imagine that this problem will ever be resolved unless the role of search engines is acknowledged.

Footnote Hell

I just came across the following footnote in Reginald Leamon Robinson, The Sacred Way of Tibetan CRT Kung Fu: Can Race Crits Teach The Shadow's Mystical Insight and Help Law Students "Know" White Structural Oppression in the Heart of the First-Year Curriculum? A Critical Rejoinder to Dorothy A. Brown, 10 Mich. J. Race & L. 355, 356 n.4 (2005)

By ordinary people, I mean non-elite Asians, blacks, Indians, Latinos, whites, and women, including immigrants. See generally Reginald Leamon Robinson, Human Agency, Negated Subjectivity, and White Structural Oppression: An Analysis of Critical Race Practice/Praxis, 53 Am. U. L. Rev. 1361, 1363 n.9 (2004) [hereinafter Robinson, Human Agency] (defining ordinary people to mean "non-elite Asians, blacks, American Indians, Latinos, whites, and women, including immigrants").

Is there any just world in which that last parenthetical is necessary? Oy gevolt!

Also, Professor Robinson's article is an obvious nominee for coolest law review article title.

My Problem with the Yale Law Journal

Given that some people have misunderstood my objection to the Yale Law Journal altering my Pocket Part essay, I thought I should follow-up on my previous post about this experience.

Some, including one of my co-bloggers, initially had the impression that this fuss was all about a link to AutoAdmit being deactivated in my author byline. Let me make one thing clear: I don't care about the link. I don't own AutoAdmit, I don't work there anymore, and I don't care how much traffic it gets, and if the Yale Law Journal had asked me for my input before taking unilateral action I would have not only requested that the link be removed, but the reference to AutoAdmit entirely. After all, isn't updating articles to correct information one of the purported benefits of electronic publication?

My problem is with the editorial note. Because of that note, which contains false and misleading information about me (as well as AutoAdmit). I simply cannot feel comfortable sending a link to my Pocket Part piece to anyone now. How is the note false and misleading? Three things come to mind:

1. Defamation has a very clear legal meaning and most (if not all) of the posts in question, while offensive and in bad taste, are not defamatory. "Stupid B---- to Attend Yale Law," for instance, is clearly an opinion and not a statement of fact. Furthermore, there is no evidence that the statements that could be construed as statements of fact, like the allegation that the girl in that thread has a 159 LSAT, are actually false. Given that Yale Law School admitted three students with 3.75+ GPAs and sub-160 LSATs last year, there is a possibility that the statement actually is true (and the only poeple who can prove it false--the girl, LSAC, Yale's dean of admissions--have not released the information).




2. AutoAdmit did not publish any of this information. In the absence of Section 230, AutoAdmit would likely be treated not as a publisher under the common law of defamation, but a distributor. After all, AutoAdmit itself did not author any of this content--unaffiliated third parties did--and AutoAdmit did not prescreen content before it was posted or advertise itself as a place that prescreens content. An individual reading that editorial note who is unfamiliar with AutoAdmit would conclude that AutoAdmit itself was authoring defamatory comments, which is simply not true.




3. But most importantly, because the editorial note is linked to from my Pocket Part essay, readers would be misled into thinking that I somehow had decision making authority over the AutoAdmit message board. This is simply not true. My title at AutoAdmit was Chief Education Director. I had that silly title for a reason--I was the administrator of AutoAdmit Studies. Jarret Cohen has always had sole decision making authority over the message board--in fact him retaining absolute control over the board was a provision of our partnership agreement. Believe me, if I had sole decision making authority over the message board, I would have done things differently.

To reiterate: my real problem here is altering my essay's page to include a link to that statement, and implying that I was in a position to do something about what they're condemning without subjecting myself to a potential lawsuit for breach of fiduciary duty, breach of contract, and other assorted causes of action. I wouldn't care if the Yale Law Journal condemned AutoAdmit elsewhere on its site--in fact, depending on how that condemnation statement was worded, I might have signed it myself!

Covering Redundancy

Paul Horwitz links to two reviews of Kenji Yoshino's spectacular book, Covering. One, by Russell Robinson, is titled "Uncovering Covering", forthcoming in the Northwestern University Law Review. The other is Horwitz's own piece, titled "Uncovering Identity, currently out in the Michigan Law Review's book review edition.

It's A Start

It certainly doesn't compare to some of the fancy-schmancy venues of my illustrious co-bloggers. But it's a start, and for an undergrad, it ain't bad.

I'm pleased to announce that my article, "When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles," will be published in the upcoming Spring 2007 edition of the Dartmouth Law Journal. Here's the abstract:

Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.

Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.

You can download a draft copy here at SSRN.

Cigarette Advertising and Web 2.0

Unlike other industries, cigarette firms have engaged in very little--if any--advertising on the internet. In fact, most cigarette manufacturers do not even have websites for their cigarette brands. The official Philip Morris website, for instance, explicitly states that "[i]t is not intended to market, advertise, promote or offer coupons for [its] cigarette brands." This is not surprising, since the Ciagrette Labeling and Advertising Act (15 U.S.C. § 1335) makes it "unlawful to advertise cigarettes... on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission," which includes the internet.

But then came YouTube:



Of course, it's unlikely that uploading a decades-old black and white cigarette commercial to YouTube will have any impact whatsoever on anyone's smoking behavior. But what about the following example of user-generated marketing:



Are such YouTube videos unlawful under the Cigarette Labeling and Advertising Act? If not, should the act be amended? Would the analysis change if a cigarette company offered these YouTube users gifts (such as an all-expense paid trip to the Marlboro Ranch) without explicitly requiring or encouraging the bloggers to promote their brand online (a la Microsoft's laptop giveaway to bloggers)?


I will address these issues in my essay Joe Camel Meets YouTube: Cigarette Advertising Regulations and User-Generated Marketing
(forthcoming in the University of Toledo Law Review), and potentially on this blog as well.

The Perils of Publishing in Online Law Reviews

APRIL 13 UPDATE: See follow-up post here.

(Alternate title: Why Author Agreements are Important)

Yesterday afternoon I discovered that the Yale Law Journal's Pocket Part altered an essay I published last year to include a link that refers readers to a webpage that contains false and misleading information about my former employer and me personally. This was done without my consent, and without even contacting me before a decision was made to get my input. I have been told that the Pocket Part did this due to pressure from certain individuals within the Yale Law School community who were upset about perceived inaction by my former business partner on issues that I had absolutely no control or authority over. My essay, which was about the impact blogs have on student scholarship, had absolutely nothing to do with this recent controversy except that it mentioned the position I held at the time in my author byline at the very end of the essay.

I have blogged about online supplements before (see here and here), as has at least one of my co-bloggers (see here). Though many have written about the drawbacks of law journals that are published exclusively online (such as the potential that the site hosting the law journal may one day simply disappear), I do not recall anyone seriously raising the possibility that a law journal may alter an article or the webpage hosting the article out of an animus against the author after publication--likely because no one would consider that a serious academic publication would actually engage in such behavior. Unfortunately, now that it has happened once, I expect it to happen again.

But it won't happen to me. I believe the arguments I make in my papers are important, and I want those papers to be read by the widest audience possible. However, as an author I simply cannot take the risk of publishing in an online journal when there is a very real possibility that some future board will alter my article itself or the webpage containing the article long after publication. Neither I nor any other author should be put in a position where we have to worry that one day we will not be able to refer people to a paper published in an online journal because the page now links to a page whose only purpose is to engage in character assassination and to damage one's professional reputation.

Based on this experience, from now on I will insist that my author agreement contains provisions that explicitly forbid my article or the webpage containing the article from being edited in any way without permission after publication. If an online journal refuses to include such a provision, I will not publish there. Since one never knows when one might end up on the wrong side of the news cycle (or just the wrong side of an Editor-in-Chief), I would encourage other authors considering online journals to take the same protective measures, if only for peace of mind.

I really wish this wasn't necessary since I know from firsthand experience that there are many great online journal editors who do not engage in these underhanded tactics and strive hard to try to get the same amount of respect as print journals. But unfortunately journal boards turn over every year, so there is absolutely no guarantee that future Editors-in-Chief will share the same views as the Editor-in-Chief one deals with during the submissions and editing process.

Twenty Five Years of Student Scholarship in Judicial Opinions

Blake Rohrbacher, a Richards Layton & Finger associate, has uploaded a very interesting study on citations to student scholarship in judicial opinions. You can download it here.