Monday, May 07, 2007

Scholarship and the Second Amendment in the Courts

Yesterday's front page of the NY Times included a story by Adam Liptak arguing that the conversion to the individual right view of the Second Amendment by liberal constitutional scholars over the last two decades played a role in the movement of the courts towards that view. The principal exhibits for this proposition are Sandy Levinson, Akhil Amar, and Larry Tribe. Although I'm more or less on the other side of this issue, I won't use this post to object to the substance of their respective arguments. Instead, I want to question the causal claim Liptak makes.

In a Times article on March 19 of this year (no longer available for free on the web, but you can read my brief discussion of it here), Liptak reported on an academic conference on legal scholarship featuring academics and judges. The takeaway point of the conference (and the Times article) was that judges have little use for law review articles. So what gives? Are judges indifferent to legal scholarship, as Liptak reported in March, or is legal scholarship a moving force behind the judicial sea change we may be observing with respect to the Second Amendment?

In fairness to Liptak, it's possible that the influence of legal scholarship on courts is declining overall but that in the area of the Second Amendment scholarship plays an important role. Possible, but doubtful, I think. To be sure, there are areas of the law in which a new academic paradigm clearly drives doctrinal change. The shift to an efficiency rationale in antitrust law is the clearest case. But such examples are rare. More commonly, I think, academic scholarship, even when cited by courts, plays a non-causal role: At least in hard cases, judges decide the case first and then look for support for their conclusions, taking it in academic work if they can.

Even when a court cites legal scholarship in a less opportunisitc fashion, it may be a mistake to attribute specific decisions to the influence of scholarship as such. Sometimes social attitudes or material conditions change and this change then gets reflected in both academic writing and judicial decisions. A nice example of this phenomenon, I think, is the shift between Bowers v. Hardwick in 1986---denying recognition to a constitutional right to same-sex sodomy---and the Supreme Court's decision in Lawrence v. Texas in 2003---overruling Hardwick. The Lawrence opinion cites a number of books and articles in support of its conclusion, but one need not be a cynic to see that the real change was in social attitudes, including the attitudes of the Justices. My point is not that intellectual movements in and about the law have no impact, nor am I a crude Marxian. My point is simply that in general, social movements and social and economic conditions play a larger role in shaping the law and academic trends than vice versa.

An interesting question for me would be why the political/legal movement for an individual right view of the Second Amendment has gained as much traction as it has. For my explanation why, despite that traction, this movement probably won't succeed in the Supreme Court (at least absent one or two more Republican appointments), see my article, Identity Politics and the Second Amendment, 73 Fordham Law Review 549 (2004) (sorry, no web version available).

[Full disclosure: I spoke with Mr. Liptak last week and expressed skepticism (along the lines described above) about his causal claim. I guess I didn't say anything quote-worthy.]


egarber said...

My point is simply that in general, social movements and social and economic conditions play a larger role in shaping the law and academic trends than vice versa.

On the flip side, I think there is risk when the courts allow social trends to overwhelm timeless constitutional anchors. For example, I worry that shifting attitudes post 9-11 about the fourth amendment and executive power could influence the courts in ugly ways.

Adam P. said...

However, you did get cited in Randy Barnett's blog as one of the few
"nonoriginalists" who discusses the 2nd Amendment on "nonoriginalist" grounds. Way to represent consistency....

I also thought this was as an asenine piece. I don't think "liberal professors" have anything to do with 2nd Amendment case law for 2 reasons.
1) There is very little of it going around.
2) The judges who are finding an individual right are not surprising. They're conservatives, many of whom are libertarians. The DC Circuit judges did not need any liberal law prof to tell them it was alright to endorse an individual right view.

Tam Ho said...

For what it's worth, TimesSelect is available free of charge for anyone with a .edu address. Adam Liptak's March 19 article, is accessible with a TimesSelect account.

Sobek said...

I wonder about the extent to which legal scholarship finds its way into opinions without the judge openly citing it. It seems like it makes more sense for the lawyer to find the scholarship, and if not citing it outright, at least being influenced by the arguments and (more likely) relying on the citations in crafting the papers that the judge eventually sees.

Frank said...

I posted on this here:

I would like to read your nonoriginalist arguments on the matter.

Benjam said...

tam, you are awesome! now i can read more david brooks drivel and thomas friedman war apologia for free.

mike, on the substance of the article, i think you make a good point about the author. on the other hand, the jurisprudential conversion of larry tribe is a shift of the highest order. i would say one lawrence tribe is worth 100 law review articles. so maybe there is some consistency.

i was struck by one segment of the article in regards to the relative inconsistency of civil rights interpretation. liberals have searched far and wide to find textual support for privacy rights. it is hard to imagine that the same expansive view of rights can support such a parsimonious interpretation of the second amendment. i would like to know more about the substance of your rather sparse second amendment reading. is it simply based on the "milita" clause or is there additional historical support? is there a good book or article on point?

Michael C. Dorf said...

Frank and Benjam: You can find my non-originalist argument in a symposium issue of the Chi-Kent Law Review @
(scroll down the page)

It's "non" originalist in the sense that it doesn't rely exclusively on the original understanding; it acknowledges the relevance of original understanding as a factor in constitutional interpretation.

I also address the argument that given judicial protection for sexual privacy without any direct textual support, protection for gun rights follows a fortiori.

The one piece I would re-write if I could is a citation of the now-discredited Michael Bellesiles, although it's on a fairly minor point (for me). I corrected the article when it appeared later in a book.


Benjam said...


your chicago-kent piece is a fantastic synopsis of the two competing 2nd amendment views. still, it left me unconvinced. i continue to believe that there is some individual grant contained in the second amendment. the piece left me with questions.

if the government is one of enumerated powers, why should we read the second amendment primarily as a prohibition against federal abolition of state militias? wouldn't that be a redundancy?

(citing modern commerce clause bastardation simply doesnt address the question of intent. two jurisprudential wrongs dont make a jurisprudential right.)

otherwise put, if the framers merely wanted to prevent the feds from banning state militias or maintaining standing armies, wasnt there a plethora of better ways to accomplish that, aside from granting people the right to keep and bear arms?

you start off by arguing the canon that every word should be given effect but that is undercut by your admission that the "well-regulated militia" clause is merely a preamble. you argue that a preamble should provide "guidance" and that makes sense but it doesnt pack the same punch. you mention the copyright and patent preamble. i wonder why you didnt mention the "general welfare" wording in Article I Section 8?

in the end, the preamble discussion is academic. i must agree with volokh. i simply cannot convince myself that the operative phrase "to keep and bear arms" is ambiguous in any meaningful way. accordingly, it should not be overridden by its justification clause.

in your conclusion, you take an expansive, common-sense, and practical definition of speech. this provides an interesting contrast to a very different approach you take in defining the words "keep and bear."

the strength of the piece is its forceful rebuke of dogmatic originalism and your optimistic belief that the meanings of the constitution can continue to evolve with human thought. the piece is brilliant and pursuasive but i still think it is in some sense dangerous. someday, your eloquence could be cited in defense of laws which deprive americans of basic civil rights. your argument that "doctrine is more important than text" is powerful. but couldnt the same argument have been used to resist the civil rights movement? i worry that someday, dogmatic originalism will be our only protection from an orwellian state.

Michael C. Dorf said...

i'll have a reply to benjam's last comment in some depth in my post tomorrow.

egarber said...

benjam said:

i wonder why you didnt mention the "general welfare" wording in Article I Section 8?

That isn't a preamble is it? Notwithstanding James Madison's effort to explain it as such in the federalist papers, Alexander Hamilton won the larger debate about whether "taxing for the general welfare" is a stand-alone power.

It reads to me -- and I think the courts -- as merely the first item in a list of powers. It doesn't mean Congress can do anything in the name of the general welfare, but it can "tax" and "spend" on its behalf.

That clause ends with a semi-colon, just like all the other powers listed. Why should it be read any differently than the first stand-alone clause in other sections?

Benjam said...

egarber: michael's piece in chicago-kent states that the trademark and patent clause is the only thing approaching the "well-regulated militia" clause. he recites the canon that every word should be given some effect. my point was that the debate surrounding the "general welfare" wording might be informative, not dispositive.

PG said...

I didn't find Glenn Reynolds's summary of the arguments for the individual rights view very convincing, but perhaps the Tribe/ Amar/ Levison version will jibe better.

Anonymous said...

免費A片, ut聊天室, AV女優, 美女視訊, 免費成人影片, 成人論壇, 情色交友, 免費AV, 線上a片, 日本美女寫真集, 同志聊天室, 聊天室交友, 成人文章, 成人圖片區, 色情網站, 辣妹視訊, 美女交友, 微風成人區, 色美媚部落格, 色情影片, 成人影片, 成人網站, 免費A片, 上班族聊天室, A片,H漫, 18成人, a漫, av dvd, 一夜情聊天室, 微風成人, 成人圖片, 成人漫畫, 情色網, 日本A片, 免費A片下載, 性愛, 成人交友, 嘟嘟成人網, 嘟嘟成人網, 成人貼圖, 成人電影, 成人, 中部人聊天室, 080中部人聊天室, 成人貼圖, 成人小說, 成人文章, 成人圖片區, 免費成人影片, 成人遊戲, 微風成人, 愛情公寓, 成人電影, A片, 情色, 情色貼圖, 情色文學, 做愛, 成人遊戲, 成人影城, 色情聊天室, 色情小說, 一葉情貼圖片區, 情色小說, 色情, 寄情築園小遊戲, 色情遊戲, 成人網站, 麗的色遊戲, 色情網站, 成人論壇, 情色視訊, 情色電影, aio交友愛情館, 言情小說, 愛情小說, 色情A片, 情色論壇, 自拍, 癡漢, , 俱樂部, 豆豆聊天室, 聊天室, 色情影片, 視訊聊天室, 免費視訊聊天, 免費視訊, 視訊交友90739 情人視訊網影音視訊聊天室 免費視訊聊天室 視訊聊天 視訊交友 美女視訊 視訊美女 視訊 免費視訊 免費視訊聊天 視訊聊天室 辣妹視訊 一夜情 色情a片 aio交友愛情館 情色電影 情色視訊 色情遊戲 色情 情色小說 一葉情貼圖片區 色情小說 色情聊天室 情色交友 成人論壇 成人網站 色情網站 情色論壇 小高聊天室 女同志聊天室 6K聊天室 080苗栗人聊天室 080聊天室 聊天室尋夢園 UT男同志聊天室 男同志聊天室 尋夢園聊天室 UT聊天室 聊天室 豆豆聊天室 A片 成人電影 成人貼圖 嘟嘟成人網 美女交友 本土自拍 成人交友 成人影片

Anonymous said...

I always heard something from my neighbor that he sometimes goes to the internet bar to play the game which will use him some habbo credits,he usually can win a lot of habbo gold,then he let his friends all have some habbo coins,his friends thank him very much for introducing them the cheap habbo credits,they usually buy habbo gold together.

Anonymous said...

酒店喝酒,禮服店,酒店小姐,酒店經紀,制服店,便服店,鋼琴酒吧,兼差,酒店兼差,酒店打工,伴唱小姐,暑假打工,酒店上班,日式酒店,舞廳,ktv酒店,酒店,酒店公關,酒店小姐,理容院,日領,龍亨,學生兼差,酒店兼差,酒店上班,酒店打工,禮服酒店,禮服店,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,經紀 彩色爆米花,經紀人 彩色爆米花,酒店傳播,酒店經紀 彩色爆米花,爆米花,童裝,童裝拍賣,童裝大盤,童裝寄賣,童裝批貨,酒店,酒店,童裝切貨,酒店,GAP童裝,酒店,酒店 ,禮服店 , 酒店小姐,酒店經紀,酒店兼差,寒暑假打工,招待所,

Anonymous said...

酒店喝酒,禮服店,酒店小姐,制服店,便服店,鋼琴酒吧,兼差,酒店兼差,酒店打工,伴唱小姐,暑假打工,酒店上班,日式酒店,ktv酒店,酒店,酒店公關,酒店小姐,酒店兼差,酒店上班,酒店打工,禮服酒店,禮服店,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,經紀 彩色爆米花,經紀人 彩色爆米花,酒店傳播,酒店經紀 彩色爆米花,爆米花,童裝,童裝拍賣,童裝大盤,童裝寄賣,童裝批貨,酒店,酒店,童裝切貨,酒店,GAP童裝,酒店,酒店 ,禮服店 , 酒店小姐,酒店經紀,酒店兼差,寒暑假打工,招待所,酒店小姐,酒店兼差,寒暑假打工,酒店上班,暑假打工,酒店公關,酒店兼職,酒店經紀

Anonymous said... . .
[url=]puma shoes[/url]
[url=]chaussures puma[/url]
[url=]nike air max ltd[/url]

Anonymous said...

酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店經紀, 酒店打工經紀, 制服酒店工作, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀,,