Steven Walker Music · My arrangements

Steven — Wed, 29 Apr 2020 22:38:50 +0000

Steven Walker Music · Memorable recordings

Steven — Tue, 28 Apr 2020 09:15:52 +0000

My SOUNDCLOUD page is renewed! Check it out for new recordings of my latest arrangements and momorable recordings as a conductor!

Steven — Sun, 26 Apr 2020 12:23:58 +0000

New arrangements published by Bronsheim Music 2019/2020

Steven — Sun, 12 Apr 2020 15:43:34 +0000

The Best of Fleetwood Mac ( for wind band and fanfare ) Keeping The Dream Alive by Münchener Freiheit ( for wind band and fanfare ) De Mallemolen by Heddy Lester ( for wind band and fanfare ) The Best of Neil Diamond ( for wind band and fanfare ) All available at www.bronsheimmusic.nl

Main Title From INDECENT PROPOSAL (John Barry,arr.Steven Walker) for fanfare!

Steven — Sat, 19 Oct 2019 10:08:18 +0000

Now available for fanfare and optional piano!

MIDI recordings of my recent arrangements

Steven — Fri, 18 Oct 2019 09:38:44 +0000

New Publications at BRONSHEIM MUSIC in 2019

Steven — Mon, 24 Jun 2019 08:30:33 +0000

…….and more to come! Stay tuned!

INDECENT PROPOSAL, Main theme from the movie ( John Barry, arr.Steven Walker )

Steven — Sat, 18 May 2019 12:07:41 +0000

New arrangement for wind band. Published by Bronsheim Music. www.bronsheimmusic.nl

Steven’s ABC…

Steven — Tue, 04 Dec 2018 09:22:49 +0000

Do you need a fine arrangement for your band? Are you looking for a competent, very experienced and highly motivated conductor for your band? Are you looking for an expert and inspiring clarinet teacher?

NIEUWE UITGAVEN BIJ BRONSHEIM MUSIC SEIZOEN 2017/2018

Steven — Thu, 30 Aug 2018 14:05:07 +0000

ADAGIO from the 3rd Synphony ( Anton Bruckner ) https://bronsheimmusic.nl/componisten-arrangeurs/steven-walker/adagio-from-the-3rd-symphony-harmonie.html BABA YAGA op.56 ( Anatoly Liadov ) https://bronsheimmusic.nl/componisten-arrangeurs/steven-walker/baba-yaga-opus-56-harmonie.html ALS RENNEN GEEN ZIN MEER HEEFT ( Marco Borsato ) https://bronsheimmusic.nl/componisten-arrangeurs/steven-walker/als-rennen-geen-zin-meer-heeft-harmonie.html OMARM ( Bløf ) https://bronsheimmusic.nl/componisten-arrangeurs/steven-walker/omarm-harmonie.html GAIA ( Valensia ) https://bronsheimmusic.nl/componisten-arrangeurs/steven-walker/gaia-valensia-harmonie.html HET DORP by Wim Sonneveld ( fanfare ) https://bronsheimmusic.nl/componisten-arrangeurs/steven-walker/het-dorp-fanfare.html

Briefly Podcast

sandstormer — Mon, 25 Jul 2022 17:29:50 +0000

Briefly Podcast sandstormer Mon, 07/25/2022 - 12:29

Featured Podcast

The University of Chicago Law Review

sandstormer — Thu, 21 Jul 2022 19:19:40 +0000

The University of Chicago Law Review sandstormer Thu, 07/21/2022 - 14:19

Featured

Article

Volume 91.2

Restating the Law in a Child Wellbeing Framework

Elizabeth S. Scott

R. Medina Professor of Law, Emerita.

For helpful comments, thanks to Clare Huntington and to participants in the symposium conference at the University of Chicago. Thanks also to the University of Chicago Law Review editors and staff, and to Dan Cobourn for research assistance.

Article

Volume 91.2

The Restatement of Law on Juveniles' Adjudicative Competence and Rights in Interrogation: Evidence of Progress

Thomas Grisso

Professor Emeritus, Department of Psychiatry, University of Massachusetts Chan Medical School, Worcester, Massachusetts.

Part 3 of the Restatement of Children and the Law, “Children in the Justice System,” reflects recent dramatic reform in juvenile law and practice. The reform recognizes that kids are different, requiring special attention to protecting due process when the justice system must make decisions in delinquency cases. The Restatement’s analyses use neuroscientific and psychosocial developmental research that has improved our understanding of children’s and adolescents’ immature decision-making capacities and psychosocial vulnerability compared to adults. This developmental perspective has led to extensive reform of laws and practices that seek to better protect juveniles’ due process rights when in custody of the juvenile justice system. Analyzing established law and progressive trends, the Restatement offers guidance for the legal system and process, highlighting the need for continued changes in courts and legislatures not yet in step with prevailing trends in juvenile law. This commentary examines two topics in Part 3 of the Restatement: Chapter 15, § 15.30 on “Adjudicative Competence in Delinquency Proceedings,” and Chapter 14, § 14-2 on “Interrogations and the Admissibility of Statements.” For both areas, the commentary examines the present state of law, policy, and practice trends identified by the Restatement, with special attention to needs for further reform. What evidence do we have that states are adopting, or are slow to adopt, important trends in juvenile law identified in the Restatement’s approach to juvenile adjudicative competence and pretrial custodial interrogations? Where is there still work to be done to promote changes in law highlighted by the Restatement, and what factors challenge that work?

Article

Volume 91.2

Advancing Racial Justice Through the Restatement of Children and the Law: The Challenge, the Intent, and the Opportunity

Kristin Henning

Blume Professor of Law, Director, Juvenile Justice Clinic & Initiative, Georgetown University Law Center.

Special thanks to Alina Tulloch and Rebba Omer for their invaluable research assistance.

The ALI launched the Restatement of Children and the Law to bring clarity and coherence to the increasingly complex and uncertain landscape of the juvenile court and the law related to children. As the Restatement surveys the courts’ growing respect for the developmental plasticity and potential of children, it is crucial that the law afford all youth—regardless of race and class—the full benefits of the developmental research and enhanced procedural protections. Despite the limitations of any project that seeks primarily to recite existing law, this Restatement has great potential to advance racial equity in the care and regulation of youth. The Restatement should tell a complete story, including information to help readers understand how youth of color are impacted by the law. By painstakingly locating and embracing judicial opinions that acknowledge the role of race in juvenile, criminal, and family law, and by incorporating relevant history, data, research, and analysis, the Restatement can serve a crucial role in educating readers on the sources of and remedy for racial inequities in the various legal systems that affect children.

Article

Volume 91.2

Adolescents in the Justice System: A Progress Report on the Restatement of Children and the Law

Richard J. Bonnie

Harrison Foundation Professor of Medicine and Law Emeritus, Schools of Law, Medicine, and Public Policy, University of Virginia, and Director Emeritus of the Institute of Law, Psychiatry and Public Policy; Reporter, Restatement of the Law: Children and the Law.

Two uniquely qualified and accomplished experts have agreed to comment on the current draft of the Restatement from the perspectives of adolescent development and racial equity. First, Thomas Grisso, Emeritus Professor of Psychiatry at the University of Massachusetts Medical School, addresses the proposed Restatement’s approach to the assessment of adolescent decisional capacity, a pivotal feature of the law’s evolving effort to ground the law in advancing knowledge about adolescent development. Second, Kristin Henning, Blume Professor of Law at the Georgetown Law Center, reflects on the profound challenge our legal system faces in the effort to achieve unbiased, fair, and effective responses to youthful offending. This essay responds to their respective critiques and proposals.

Article

Volume 91.2

The New Parents' Rights Movement, Education, and Equality

Kristine L. Bowman

Michigan State University Professor of Law, College of Law; Professor of Education Policy and Associate Dean for Academic and Student Affairs, College of Education. J.D., M.A. Duke University, Ph.D. Political Science, University of Queensland.

I enjoyed presenting the ideas in this Essay at the University of Chicago, Loyola University-Chicago, and the Michigan Education Policy Leaders Program kickoff event and I benefited from the comments of colleagues and participants in those events. I am particularly grateful to Emily Buss and to MSU doctoral and law students for their insights. Last but not least, James Marmaduke and the University of Chicago Law Review staff provided exceptional support during the publication process.

All education law and policy is built on one theory of educational decision-making or another. In this Essay, I have identified the theory of educational decision-making that underlies a core aspect of education law today, as synthesized in the Restatement of Children and the Law. It is a theory that brings the state, professional educators, and parents to the table. The New Parents’ Rights Movement, by contrast, seeks to center parents as the primary educational decision-makers, and the consequences of such a shift have the potential to exacerbate the escalating polarization that grips our country by unsettling the balance in educational decision-making that has anchored education law and policy for a century or more. Furthermore, the New Parents’ Rights Movement also seeks to enact a series of changes that not only give parents more control over their own children, but also would allow some parents to impose anti-egalitarian values broadly within public schools by controlling the content of curriculum, removing books from public school libraries, and introducing other policies that further marginalize individuals who are already minoritized based on their race, sexual orientation, or gender identity. Such law and policy changes have been proposed across the country and at all levels of government. The resulting battles are intense, and for good reason.

Article

Volume 91.2

Some Thoughts on a Developmental Approach to a Sound Basic Education

Goodwin Liu

Associate Justice, California Supreme Court.

I am grateful to Elizabeth Walsh for outstanding research assistance.

How do we teach our young people to engage in constructive dialogue and find common purpose across lines of race, class, religion, and politics? In this era of polarization, the ideal of the common school where children of all walks of life learn together can seem somewhat quaint and unattainable. Given the geographic and demographic limitations of our K–12 schools, I wonder if it is time to reconsider an idea often floated but never adopted: one year of mandatory community service after high school (sometimes called “national service,” but it need not be “national” in design or governance), designed to assemble young people across lines of difference to work together in food banks, afterschool programs, youth centers, veterans’ facilities, health clinics, and other areas of community need. Through a shared, hands-on experience of public service, our youth can learn to appreciate differences, build bridges, respect one another, and understand their role in strengthening our democracy. Might this one day become part of a sound basic education, if we take seriously the preparation of our children for responsible and effective citizenship? The Restatement, appropriately, does not venture beyond the K–12 framework in defining a sound basic education because courts and legislatures have not done so. But the Restatement, also appropriately, elucidates a deeper thread in our treatment of children—what Professor Scott calls the developmental approach—which straddles the duality, inherent in any Restatement, of what is and what ought to be. Our world is ever changing, and the developmental needs of our youth change too. Structures and standards that were once suitable may become inadequate over time. There may come a day when a sound basic education encompasses not only primary and secondary education in their current forms, but also a well-developed opportunity infrastructure during early childhood and beyond high school. That day may come sooner than we think, given the needs of our children and the society they will inherit. If so, this treatise will stand up well, for one hallmark of an insightful restatement is that it not only states the law as it is, but also, in its explication, marks the path of its own transcendence.

Article

Volume 91.2

Protecting Children's Access to a Sound Basic Education in the Age of Political Polarization, A Comment on Goodwin Liu and Kristine Bowman's Essays on Children's Education in the Restatement

Emily Buss

Mark and Barbara Fried Professor, University of Chicago Law School.

Thanks to Katherine Stanton and Rex Dyches for excellent research assistance and to the Arnold and Frieda Shure Research Fund and the American Law Institute for their financial support.

Justice Goodwin Liu and Professor Kristine Bowman have taken two very different approaches in their essays commenting on the Restatement’s coverage of the law governing children’s education. In Some Thoughts on a Developmental Approach to a Sound Basic Education, Justice Liu focuses near exclusively on the Restatement’s articulation of the core educational standard, the “sound basic education,” and presses for an expanded application of that standard to children from birth through young adulthood. In The New Parents’ Rights Movement, Education, and Equality, Bowman addresses the entire structure of the educational provisions of the Restatement, which straddle Part 1, “Children in Families,” and Part 2, “Children in Schools,” and warns us of the fragility of the balance between these two sources of educational control in our legal system. Attending these differences in focus are important differences in tone: Justice Liu is optimistically ambitious, calling for developments in the law that extend beyond what can currently be restated. Professor Bowman is pessimistic, predicting that the recent “parents’ rights movement” threatens the stability of the restated law, to the detriment of children’s and society’s well-being. At the same time, the two pieces share important common ground. Most significantly, they share a concern about the growing polarization in our society and a belief that our system of education must play a central role in resisting this trend. In this Essay, I will first briefly set out the Restatement’s approach to education, which spans several chapters in two parts of the Restatement. Next, I will consider Professor Bowman’s essay addressing the threats she identifies and the role the Restatement can play in resisting those threats. I will then consider Justice Liu’s more optimistic anticipation of future developments in the law and the role the Restatement could play in fostering those developments. I will conclude by suggesting that avoiding Professor Bowman’s threats and achieving Justice Liu’s aspirations will largely depend on the democratic process, a process not governed by the Restatement, but perhaps subject to the influence of some of the legal principles it highlights.

Article

Volume 91.2

Nudging Improvements to the Family Regulation System

Josh Gupta-Kagan

Clinical Professor of Law, Columbia Law School.

The author would like to thank Nereese Watson for excellent research assistance and the appendix charts, the Symposium organizers and the University of Chicago Law Review editors, and especially Elizabeth Scott, Richard Bonnie, Emily Buss, Clare Huntington, and Solangel Maldonado for their tireless work on the Restatement.

The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children. But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation in practice by jurisdiction, nor will it satisfy calls for a more fundamental transformation of the legal system. For instance, the Restatement requires consideration of the harm of removing children from their parents, without explaining how to weigh that against possible harms of remaining at home. It provides that poverty alone does not amount to neglect, without providing much guidance on the difficult question of how to implement that principle. The Restatement creates a clear preference for placement with relatives over strangers, without clarifying what suffices to overcome those preferences. It recognizes a right of parents and children separated by the state to visit with “frequency,” without defining that term. This analysis is not a criticism of the Restatement—by codifying existing law, it does what the Restatement should do. Rather, this analysis highlights how this Restatement can contribute to child neglect and abuse law in the present context. It can help nudge the law in a modestly improved direction and highlight areas that require more transformative legal changes.

Article

Volume 91.2

Parental Rights: Rhetoric Versus Doctrine

Clare Huntington

Professor of Law, Columbia Law School.

I am grateful to Josh Gupta-Kagan for his essay in this symposium as well as the countless hours he has dedicated to the Restatement as an adviser.

Professor Josh Gupta-Kagan observes that the Restatement of Children and the Law does not transform the law of child abuse and neglect. As he contends, this is neither a feature nor a bug. It is simply the reality of a restatement, which can only nudge, not reform, the law. I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars—including both of us—who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem for law reform. But the nature of a restatement is to restate. Notwithstanding this inherent constraint, I want to underscore one aspect of Gupta-Kagan’s argument and suggest that the Restatement does more than may first meet the eye. Gupta-Kagan applauds the Restatement’s embrace of parental rights for families facing coercive state intervention through the family regulation system. He demonstrates that at several doctrinal forks, the Restatement relies on parental rights to choose the rule that is more protective of family integrity. As Gupta-Kagan shows, by emphasizing these rights, the Restatement reinforces the doctrinal shield that helps protect marginalized families from state intervention. I second the value of this shield, but in my view, the Restatement does something else as well. By restating the doctrine of parental rights—as it applies in the family regulation system and more broadly—the Restatement offers an institutional counterbalance to the heated partisan rhetoric around parental rights. Across the country, political leaders and advocates are claiming that these rights mean parents can control school curricula, minors cannot access reproductive health care without parental involvement, and parents must know about a child’s exploration of gender identity outside the home. This invocation of parental rights is not an attempt to recalibrate doctrine. It is a political strategy for advancing a world view. And it is highly effective, leading to considerable legislative success, at least for the moment. Legal scholars appropriately identify the dangers in this political strategy, but, as I argue in this brief response Essay, even as we recognize the problems with the rhetorical invocation of parental rights, we cannot lose sight of the doctrinal importance of parental rights. As I elaborate below, in both its process and substance, the Restatement quietly and steadily affirms existing legal doctrine. The Restatement identifies the core interest at stake in parental rights: the relationship of a parent and child and the ability for one to be with the other. Protecting the parent-child relationship is important for all families, but it is especially critical for marginalized families, who are at heightened risk of family separation. And by underscoring these interests and their deep doctrinal roots, the Restatement may (optimistically), provide a counterbalance to the ongoing culture wars.

Article

Volume 91.2

Parents in Fact

Douglas NeJaime

Anne Urowsky Professor of Law, Yale Law School.

I’m grateful to Elizabeth Scott, Clare Huntington, and Emily Buss for inviting me to offer commentary on the Restatement. I’m especially grateful to Solangel Maldonado for her tireless work on the sections of the Restatement that this Essay examines and for her generous response to this Essay. For helpful comments, I thank Courtney Joslin. For excellent research assistance, I thank Alex Johnson and Scott Lowder.

The Restatement of Children and the Law, protects a child’s relationship with a “de facto parent”—a person who has “established a bonded and dependent relationship with the child that is parental in nature.” De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a third-party nonparent. This Essay examines the Restatement’s full-throated embrace of a de facto parent doctrine—an immensely important development—in the context of family law’s evolving treatment of functional parents. In the past, family law generally cast functional parents as nonparents. For example, a 1995 state court decision, on which the Restatement relies, treated a de facto parent as a third party entitled merely to visitation with the child she had raised. More recently, family law has grown to see functional parents as parents. Common law doctrines have regarded de facto parents as entitled to the rights and responsibilities of parenthood, and a growing number of states have adopted statutory provisions that treat functional parents as legal parents. The Restatement’s approach to de facto parents reflects these developments. Even as the Restatement begins by locating de facto parents in a framework designed around conflicts between legal parents and third parties, it distinguishes de facto parents in ways that render them, both conceptually and legally, like parents. Indeed, the Restatement pushes well beyond the American Law Institute’s earlier endorsement of a de facto parent doctrine—the 2002 Principles of the Law of Family Dissolution, which recognized de facto parents but consigned them to an inferior legal status. After situating the Restatement’s approach to de facto parents within broader family law developments, this Essay explores how the evolving status of functional parents—from nonparent to parent—matters to constitutional understandings of the parent-child relationship. To account for the fundamental right of parents to direct their children’s upbringing, including by excluding third parties, the Restatement requires a de facto parent to show that “a parent consented to and fostered the formation of the parent-child relationship between the individual and the child.” This consent-based approach to de facto parenthood proceeds from an assumption that a functional parent is a third party who, based not only on their conduct but also on the conduct of an existing legal parent, can transcend that third-party status. Yet, seeing de facto parents as parents prompts skepticism of this constitutionally grounded consent requirement. Such skepticism is reflected in law, as courts have resisted a restrictive application of the requirement, and newly enacted statutory doctrines have explicitly softened the requirement. Further, the fact that other functional parent doctrines, including those that yield legal parentage, do not expressly require parental consent suggests that consent is not a constitutional requirement. More broadly, the focus on consent obscures the constitutional interests of the functional parent, who, like other parents, may have a constitutional claim to parental recognition.

Article

Volume 91.2

De Facto Parents, Legal Parents, and Inchoate Rights

Solangel Maldonado

Eleanor Bontecou Professor of Law, Seton Hall University School of Law.

I am grateful to Professor Douglas NeJaime for his engagement with the Restatement section on de facto parents and his essay Parents in Fact.

Professor Douglas NeJaime’s Essay Parents in Fact commends the Restatement of Children and the Law’s embrace of the de facto parent doctrine. He is somewhat critical, however, of the Restatement’s reference to individuals seeking recognition as de facto parents as “third parties” and its reluctance to recognize de facto parents as legal parents. He is also skeptical of the Restatement’s requirement that an individual seeking recognition as a de facto parent first show that a legal parent consented to and fostered the individual’s creation of a parent-child relationship with the child. NeJaime’s observations provide an opportunity to clarify the scope and constraints of a restatement—which requires “clear formulations of common law” rules and must “reflect the law as it presently stands” but also provides space, albeit limited, for expression of “the relative desirability of competing rules.” NeJaime’s reflections also allow us to illustrate how silence—not taking a position—on issues that courts have yet to decide furthers the Restatement’s legitimacy while minimizing the risk that it will be “a roadblock to change” as the law evolves.

Article

Volume 91.2

Beyond Home and School

Anne C. Dailey

Ellen Ash Peters Professor, University of Connecticut School of Law.

Laura A. Rosenbury

President, Barnard College, Columbia University.

We thank Donovan Bendana and Callie McQuilkin for their excellent research assistance.

The Restatement’s focus on children in society encourages us to move beyond a merely descriptive project toward a new way of envisioning children’s place in law as full persons in the present. In our view, Part 4 does much more than identify the situations where the law does or should treat children like adult decision-makers. Instead, Part 4 illuminates the possibilities for a new law of the child that understands children as developing persons deeply connected to but also distinct from the adults in their lives. We focus on § 18.11––“Minors’ Right to Gain Access to Information and Other Expressive Content”––to illustrate how the subtle transformation in Part 4 of the Restatement points toward potentially pathbreaking changes for the law of children generally. This Essay draws upon our prior work in order to illuminate the major contributions––but also shortcomings––of Part 4 of the Restatement of Children and Law. In the first Part of this Essay, we examine the Restatement’s focus on children’s interests in accessing ideas and the Restatement’s endorsement of parental authority to control that access. We applaud the Restatement’s important discussion of the background and rationale for recognizing children’s right to access information and expressive materials. Yet we note that the Restatement undermines its own commitment to children’s free speech interests by expressly endorsing parents’ broad authority to limit children’s access to ideas. In the second Part, we explore what it would mean to respect children’s right to access ideas on their own, free from parental control. We focus on the example of social media because of its importance in children’s lives today and note that broad parental authority to limit this access, as set forth in the Restatement and in recent legislation in Utah and Arkansas, potentially harms children’s interests. The third Part proposes alternative black-letter law designed to better promote children’s interests in accessing ideas.

Article

Volume 91.2

She's So Exceptional: Rape and Incest Exceptions Post-Dobbs

Michele Goodwin

Linda D. & Timothy J. O’Neill Professor of Constitutional Law and Global Health Policy at Georgetown Law School, Co-Faculty Director of the O’Neill Institute.

The author is grateful to the editors at the University of Chicago Law Review and to Morgan Carmen for invaluable research assistance.

Multiple approaches to securing reproductive justice to protect the reproductive decision-making of youth could exist, but only exceptions for rape or incest have largely been articulated and pursued. No specific federal or state legislation—specifically focused on adolescents—has been proposed or enacted at the federal or state levels in the Dobbs’s aftermath. Nevertheless, novel legal strategies that center youth are long overdue substantively and symbolically and the models already exist to bring such efforts about—through referenda, federal legislation, state legislation, and executive orders. An emancipation proclamation for reproductive health is a vision that should be brought to life. As an initial matter, risks can and should be mitigated in all instances of rape and incest. Most immediately, legislatures can and should act by enacting laws that grant exceptions for pregnancies that result from rape and incest. However, there are important reasons for an expansive path and avoiding exceptionalism such as to nullify all abortion bans that deny adolescents’ reproductive decision-making, including in deciding to terminate a pregnancy when rape or incest have not occurred.

Article

Volume 91.2

Comment on Part 4 Essays: Goodwin and Dailey and Rosenbury

Elizabeth S. Scott

Harold R. Medina Professor Emerita, Columbia Law School.

For helpful comments and suggestions, I am grateful to Emily Buss and Clare Huntington.

Professors Michelle Goodwin and Anne Dailey and President Laura Rosenbury have written two compelling essays on Part 4 of the Restatement of Children and the Law, dealing with Children in Society. Goodwin’s essay, She’s So Exceptional: Rape and Incest Exceptions Post-Dobbs, focuses on § 19.02 of the Restatement, dealing with the right of minors to reproductive health treatments. This Section was approved by the American Law Institute before the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade. In her essay, Goodwin explores the harms that will follow if minors’ right of access to abortion, contraception, treatment for sexually transmitted infections and other care is cut off. Dailey and Rosenbury engage with §§ 18.10 and 18.11, dealing with minors’ right of free expression in their essay, Beyond Home and School. Building on arguments against strong parental authority they have developed in earlier work, they challenge the Restatement’s position recognizing parents’ authority to limit their children’s access to speech, focusing particularly on social media. This Comment begins by briefly describing Part 4 of the Restatement, which includes diverse regulation dealing with the law’s direct relationship with children, not mediated (primarily) through the institutions most relevant to children’s experience—the family, the public school, and the justice system. It then reviews the two essays on Part 4, turning first to Goodwin’s essay and then to Dailey and Rosenbury’s essay. Finally, I suggest that the two essays, while they address very different legal issues, are in conversation with one another. Goodwin’s essay is a cautionary tale on the risk of giving the state (and particularly the political branches) greater authority to decide what is harmful to children, as Dailey and Rosenbury’s proposal would seem to do.

Online

Post

The Perils of Poor Penmanship: A D.C. Circuit Fight Demonstrates the Urgency of Electronic Union Elections

Noah Levine

J.D. Candidate at the University of Chicago Law School, Class of 2025.

He thanks the University of Chicago Law Review Online team for their careful feedback.

The legibility of handwriting is on the decline. Thankfully, calligraphy carries low stakes in a digital age. Why write something down when it can be typed instead? Yet, there is still one near-universal fragment of writing that must often be done by hand: the signature. While usually a formality, so long as signatures are done by hand, they can be second-guessed, threatening a generation untrained in cursive. This Essay highlights a recent incident in which a union representation election hinged on the legibility of one employee’s signature.

Online

Post

The Objective Observer Test and Racial Bias in Civil Jury Trials: The Washington State Approach

Derek Willie

J.D. Candidate at the University of Chicago Law School, Class of 2025.

He thanks the University of Chicago Law Review Online team.

Is it OK for courts to think about race when they decide whether to bar certain arguments from being made, because they think those arguments could rely on stereotypes or otherwise play on the jury’s racial biases? For the Washington Supreme Court, the answer is yes—in fact, courts have a duty to consider race in making these evidentiary decisions. Rather than statements or arguments that are made with a clearly racist intent, the Washington Supreme Court’s idea of “racially biased arguments” is far more capacious: it includes “dog whistles,” or superficially harmless comments that have the effect of operating on a jury’s implicit biases.

Online

Essay

Textualism and Progressive Social Movements

Katie Eyer

Professor of Law, Rutgers Law School.

Many thanks to Tara Leigh Grove, Eric Fish, and Logan Everett Sawyer for helpful feedback on this project. Maya Lorey, Alexandra Webb, and Erin Yonchak of the University of Chicago Law Review Online provided excellent editorial suggestions and assistance.

Should progressive movement lawyers avoid making textualist arguments? This Essay suggests that the answer is no. While there may be good reasons for movement lawyers to eschew arguments associated with their ideological opponents, none of those reasons apply to the embrace of textualist arguments by progressive movements today. Indeed, the time may be especially ripe for progressive social movements to make increased use of textualist legal arguments.

Online

Essay

Liberalism, Dependence, and . . . Admiralty

Edward A. Hartnett

Richard J. Hughes Professor of Constitutional and Public Law and Service, Seton Hall University School of Law.

Liberal political and legal theory posit a world of autonomous individuals, each pursuing their own chosen ends, linked to each other by one or more agreements. But this is not how most of us experience most of our lives. This Essay seeks to open a conversation about resources in our legal history and culture that work from different assumptions—and might perhaps be a source of inspiration—by pointing to one such resource: admiralty.

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Current Print Issue

Law Review Symposium 2022

uchicagolaw — Wed, 29 Jun 2022 20:37:18 +0000

Law Review Symposium 2022 uchicagolaw Wed, 06/29/2022 - 15:37

Labor market power is a hotly debated issue that has garnered increasing scholarly attention in legal academia. With market power comes questions of regulation. This Symposium will explore how law can address and regulate the labor market to respond to its failures. The Law Review will bring together perspectives from law, economics, history, and sociology. Scholars will engage with antitrust enforcement, unionization, and other means of workplace regulation.

This Violent City?

uchicagolaw — Thu, 23 Jun 2022 15:03:53 +0000

This Violent City? uchicagolaw Thu, 06/23/2022 - 10:03

The University of Chicago Law Review convened of the nation’s leading scholars on May 7 for a virtual symposium aimed at examining the causes of urban violence. The event showcased a diverse range of empirical, theoretical, and legal perspectives and confronted questions related to concentrated poverty, policing and incarceration, community initiatives, and more. Many of the papers focused on policing and violence in Chicago.

Below, you can watch opening remarks and access a playlist of videos for each session, described in the agenda below. Videos of each session are also available along the right side of this page.

What’s Different about Law?

mzarian — Mon, 30 Jul 2018 02:32:48 +0000

What’s Different about Law?

Gillian K. Hadfield

Professor of Law and Professor of Strategic Management at the University of Toronto

mzarian Sun, 07/29/2018 - 21:32

July 29, 2018

PDF

Alternative Dispute Resolution Poverty Law

Response

Online 86

Working for the Weekend: A Response to Kessler & Pozen

jpmcadams — Sat, 10 Jun 2017 23:42:32 +0000

Working for the Weekend: A Response to Kessler & Pozen

Charles Barzun

Armistead M. Dobie Professor of Law, University of Virginia School of Law

I thank Professors Jeremy Kessler and David Pozen for helpful comments on an earlier draft of this Response. I have made substantial revisions as a result of them, though I suspect the authors will continue to think that I have misunderstood their central claims and motivations.

jpmcadams Sat, 06/10/2017 - 18:42

June 10, 2017

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I. The Life-Cycle Theory

Let me first briefly summarize their argument. According to the authors, the life cycles of certain legal theories take a similar shape. The theories they have in mind are those that “seek to negotiate highly politicized legal conflicts through the introduction of decision-making frameworks that abstract away from the central values in contention.”8 The highest-profile examples are originalism and cost-benefit analysis (CBA), both of which purport to instruct judges or officials how to make decisions affecting public law or policy.9 Theories like these are initially controversial because they seem to exclude certain kinds of considerations (for example, current societal norms in the case of originalism, dignitary or egalitarian values in the case of CBA). But that is precisely what makes them attractive to the theories’ original adherents.

Over time, however, as these theories gain traction, they become increasingly complicated and, more important, increasingly “compromised, by their own normative lights.”10 Originalists start saying that evolutionary change over time is consistent with originalism;11 CBA supporters begin to incorporate considerations related to “human dignity, fairness, and distributive impacts” into their balancing of costs and benefits.12 In this way, such theories “work themselves impure.”13

The authors offer the life-cycle theory as a model that describes in abstract terms this process of impurification or “adulteration.” At the first stage, the theory “introduces a decision procedure or criterion for judgment that seeks to resolve a highly politicized legal conflict in terms that are relatively alien to the main points of political contention.”14 At the second stage, critics attack the theory for “its failure to secure certain values that gave rise to the conflict in the first place.”15 The crucial stage is the third one, in which “the theory responds to these critiques by internalizing them—supplementing or modifying its approach so as to better serve the initially ignored values.”16 In so doing, the theories lose “normative and conceptual purity.”17 This process then repeats itself again and again until the theory either dies or “persists in substantially adulterated form.”18

The life-cycle model itself only describes this process of adulteration, but the authors also attempt to explain it. What seems in need of explanation is why a theory like originalism or CBA becomes popular only after losing the very attribute—namely, its ability to resolve first-order political conflicts through a decision-making procedure—that had made the theory attractive to its original advocates.19 The authors’ answer comes in the form of what they call an “exogenous hypothesis” about why this phenomenon occurs.20 According to this view, “highly adulterated legal theories persist to a large degree because of the work they do ‘off the page’—serving interests and ideals that are exogenous to the theories’ stated norms.”21 The use of CBA for governmental decision-making, for instance, increases the authority and prestige of economists.22 Originalism does the same for lawyers and law professors, or at least those with a particular historical expertise.23 The authors raise and discuss a few other hypotheses but conclude that the exogenous hypothesis “strikes us as the most useful starting point for further empirical work.”24

The upshot of all of this is that the real work done by prescriptive legal theories may not be in advancing the normative goals that both motivated their original advocates and triggered the early rounds of criticism. Instead, their more lasting effects may lie in legal culture.25 Such theories affect “not only which sorts of lawyers (and nonlawyers) are in or out, up or down, but also which styles of research, rhetoric, and justification have more or less currency.”26

The authors conclude by suggesting two potential lines of work that legal scholars might profitably undertake.27 The first is an empirical project that would investigate “the indirect and unintended effects of prescriptive legal theories,” namely their consequences for “which sorts of lawyers (and nonlawyers) are in or out, up or down” and which styles of rhetoric in legal argumentation gain traction and which do not.28 The goal of such a research program would be to better “understand[ ] why these theories succeed,” and to “assess[ ] the costs of that success.”29 The authors see their own article as one, but only one, example of such a descriptive study.

The second proposal is normative and critical. The authors suggest in the conclusion that the next time a hot new public law theory comes along, public lawyers might consider using the results of the authors’ study—or those of future empirical studies of the sort just mentioned—for the sake of employing “externalist approaches to legal argument.”30 That is, scholars and lawyers should “focus not only on the merits of its initial decision-making framework but also on the social, political, and ideological effects that such a framework’s adulterated descendants could foster, down the line.”31

II. Kessler and Pozen’s Research Proposals and the Puzzled Lawyer

My interest lies with these last two proposals. In particular, my question is how each might be useful to a lawyer, judge, or legal scholar. To answer it, I will borrow and modify a heuristic that H.L.A. Hart once invoked. He suggested that asking how the “puzzled man” thought about law could tell us something important about the nature of law.32 I want to instead ask: How might these two research projects be of service to the “puzzled lawyer” (whether practitioner, judge, or scholar)? That is, does it help someone contemplating whether to adopt, endorse, advocate for, ground a legal decision on, teach, or criticize some particular legal theory to learn about its social, political, and ideological effects? My answer is roughly, “it depends, but probably not.” The rest of this Response attempts to explain what I mean.

It may be helpful to first make clear the connection between the two proposals. Why would an inquiry into the sociological consequences of a theory, like that offered by the authors, be useful for those interested in criticizing it? One reason would be if those effects could themselves be usefully classified as either costs or benefits. The authors suggest this approach when they talk of the need to assess the “costs” of the theory.33 Under this view, if we learn that certain lawyers have improved their position relative to others, or certain styles of argument have become more pervasive in legal practice, those facts might alone count as costs in themselves, to be measured by some independent evaluative standard. So we might weigh the costs and benefits of a prescriptive theory by looking to its sociological consequences just as we might weigh the costs and benefits of the Affordable Care Act34 by looking to its social and economic consequences.

But even putting aside the paradox seemingly involved in weighing the costs and benefits of cost-benefit analysis, this kind of argument would not be of much help to the puzzled lawyer. Or, more precisely, although the empirical work about the effects might be useful to her, the critical project would not seem to be doing much work. If the puzzled lawyer values certain kinds of lawyers and disciplinary methods, she may like that the theory helps advance those lawyers and those methods. If not, then she will not. But it is hard to see how deploying an “externalist approach[ ] to legal argument” against the theory would add much.35 The empirical work would presumably suffice.

It thus seems more likely that the authors are using “costs” in a loose sense to refer to the effects themselves, not so much an evaluative assessment of those effects. A more plausible answer might then be that the sociological effects of a theory might aid the puzzled lawyer in evaluating a prescriptive legal theory because it provides her with evidence as to whether the theory’s claims are true.36 The argument here would be that what really accounts for the success of a given theory is not its conceptual coherence or its normative appeal (whether formal or substantive), but rather the beneficial consequences it produces for the lawyers and law professors who endorse it. The “real basis for the persistence of an adulterated prescriptive legal theory,” the authors explain, “and the real stakes of that theory’s persistence—will be only dimly illuminated by the theory itself.”37 Originalism, for instance, increases the authority, and improves the status, of lawyers, judges, and law professors, or a certain subset of those groups.38 CBA does the same for economists.39 These sociological effects give us reason to doubt the merits of the theory because they indicate that the theory’s success is better explained by the way in which espousing its tenets has benefited its proponents than it is by the theory’s intrinsic virtues.

This would explain how the second project the authors envision—that of using “externalist approaches to legal argument” to critique prescriptive legal theories—could make use of the results of descriptive inquiries such as the one they have provided. Those arguments would look to the sociological effects of a theory in order tell a story about it—or give an explanation of its success—not in terms of the theory’s own concepts and commitments, but rather in a way that undermines those concepts and commitments. It would be like pointing to the negative economic effects of environmental regulation on the oil industry as a way to undermine the industry’s own scientific studies downplaying climate change.40 Pointing to the interests that such studies may serve gives us reason to doubt their accuracy.41 One could interpret certain forms of critical legal history as efforts along these lines.42

The problem with this approach is that it is difficult to prove empirically the causal claim on which it depends. To see why, let us imagine that we want to follow the authors’ lead and conduct an empirical inquiry into the effects of legal theories. We want to know whether we can understand better what really explains the endurance of our target prescriptive legal theory. Following the authors, our hypothesis is that these theories persist because they function to serve the interests of the lawyers, judges, and law professors who articulate, defend, and advance them.43 We might test this hypothesis by ranking law schools, law reviews, and other legal institutions according to some measure of hierarchical status. We could then identify similarly situated legal professionals, some of whom adopt the theory and some of whom do not, and then compare how each group performs over some period of time according to these external indicators of professional status. If we see consistent correlations between theory adoption and status improvements, then that fact may count as empirical support for the hypothesis that these theories linger on because they serve as vessels of professional advancement.44

That seems plausible enough, but the difficulty that quickly arises is that this approach cannot rule out the most obvious competing hypothesis, which is that the theory’s success is explained by reference to its intrinsic merits. After all, if the theory truly is conceptually coherent, normatively compelling, and practically useful, and if other lawyers, judges, and law professors recognize as much, then one would expect its proponents to achieve professional plaudits as a result.

The authors openly acknowledge the possibility—even plausibility—of such an explanation. Citing the work of Professor Imre Lakatos, a philosopher of science, they raise the possibility of an “internalist” explanation for a theory’s endurance.45 Under this view, even as the substantive implications of applying the theory become less clear, its “decisional formalism” (for example, the “centrality of the constitutional text” for originalists) endures as a “hard core” of the theory and continues to prove useful for legal decision-making.46 The internalist hypothesis, then, amounts to the claim that these theories persist “because they really have succeeded on their own initial terms, pared down to those terms’ most essential elements.”47

The authors ultimately (if tentatively) reject the internalist hypothesis.48 They do so on the ground that it fails to explain why, given the complexity which “adulterated” theories manifest in their later stages, a judge or law professor would sign on to such a program, especially since one need not do so in order to remain faithful to its now-banal prescriptions, such as to “pay careful attention to statutory text” in the case of CBA.49 Presumably, it would always be easier (and hence cheaper) to follow the procedure and avoid having to learn the complex theory. Thus, the exogenous hypothesis, which looks to the prestige and authority that such theories offer to those who embrace them, does a better job of explaining their persistence.50

But the internalist can explain such theory adoption. Those who adopt not only the theory’s “minimal prescriptions” but also the theory itself, despite its high costs, do so because they judge it to be right. They think, for instance, that a judge’s duty in a constitutional democracy is to stick closely to the constitutional or statutory text (originalism, textualism); or that sound public policy requires official decision-makers to weigh the societal costs and benefits of their decisions (CBA).

Still, the authors are skeptical. Although they acknowledge that adopting the minimum prescriptions of an adulterated theory could make a difference to how a judge decides a case, they doubt that applying such vague decision procedures yields determinate results in particular cases.51 Given such indeterminacy, they speculate that “the appeal of such a maxim has less to do with its normative or practical payoffs than with its rhetorical power—its resonance with social expectations and self-conceptions about the lawyer’s or judge’s role.”52 In other words, because the adulterated theory no longer produces the “practical payoff[ ]” it promised (that is, a decision procedure capable of producing determinate legal outcomes), the “exogenous” hypothesis, framed in terms of the theory’s “rhetorical power,” seems more likely.53

The problem with this response is that it assumes that the theory’s capacity for producing determinate results is what accounts for its appeal among those who adopt the theory. For if that is not the source of its appeal, then the fact that the (now-adulterated) decision procedure fails to yield determinate results would not necessarily count against the internalist hypothesis. Proponents of the theory might still be drawn to it—in spite of its inability to yield determinate results—on account of the other values it serves (that is, for other “internal” reasons). Even if not true of the original proponents of the theory, this may be true of more recent theory advocates.

Take originalism, for instance. On the authors’ own telling, there were multiple normative commitments of early originalism, including (1) a “conservative frustration with the ‘activist’ constitutional rulings of the Warren and Burger Courts,”54 (2) a desire to vindicate “democratic and rule of law” values,55 and (3) an effort to restrain judicial discretion.56 If it turns out that many of today’s originalists recognize that Founding-era sources fail to produce determinate results in many contested cases but nevertheless remain committed to the method on the ground that it has a better claim to democratic legitimacy than any of its competitors, then that fact might count in favor of the “internalist” hypothesis.57

The authors seem to foresee an objection along these lines, and their response is to deny that the internalist hypothesis really amounts to an alternative hypothesis at all.58 If originalism thrives because of the appeal of its minimal prescription that judges should keep the constitutional text central to their decision-making, then the internalist explanation “may just be explanation of that theory’s persistence in terms of exogenous factors: the second-order benefits that accrue to those legal theorists and practitioners who commit to norms that are socially or professionally celebrated but legally indeterminate.”59 Under this view, the two explanations—one “internalist,” the other “externalist”—are no longer competing hypotheses at all, but instead two different ways of looking at the same phenomenon.60

But now there is a problem. Recall that the question initially put forward was how empirical or descriptive projects like that of the authors could help the puzzled lawyer. The hope was that it would do so by providing her with a better explanation for a given theory’s success than its normative power or conceptual elegance.61 By demonstrating that the real explanation for a theory’s success lies in the “interests and ideals that are not compassed by the theories themselves,” there would be reason to doubt the theory’s intrinsic normative or conceptual appeal.62

Proving that hypothesis, however, would require showing that the theory’s capacity to serve such interests actually does explain its success better than does the appeal of its substantive doctrines and commitments. Otherwise, there would be no reason to question the theory. Yet if the externalist and internalist explanations are just two different interpretations of the same phenomenon, then the puzzled lawyer will be no less puzzled than when she began: she now knows there are two perspectives from which she might view the theory in question—one “internal” to it and the other “external” to it. But she is not offered any criteria for choosing between the two.

III. The Puzzled Lawyer and the Internalist/Externalist Crutch

So what has gone wrong? And what is the puzzled lawyer to do now? The answer to the first question is that the authors’ claim has undergone a subtle transformation. Initially they purport to offer a hypothesis about the real “exogenous factors” driving the continued success of adulterated theories.63 What accounts for such success, they suggest, is not the “normative or practical payoffs” promised in the theories themselves but instead the “interests and ideals” that the theories serve.64 And in theory, the results of such descriptive, empirical studies could be of use to those commentators seeking to criticize public law theories because they undermine the stated claims and commitments of the proponents of such theories.65 And for the same reason, the results could be of value to the puzzled lawyer trying to figure out what to make of these various legal theories.

But the claim then shifts slightly, likely because the authors recognize how difficult it would be to vindicate the external hypothesis empirically. Once they concede that even adulterated theories remain faithful to a minimally prescriptive core maxim (for example, to recognize the “centrality of the constitutional text” in the case of originalism), it will be almost impossible to disprove the “internalist hypothesis” that lawyers, judges, and scholars are drawn to the theory because of their genuine commitment to the maxim’s value rather than because of its “resonance with social expectations and self-conceptions about the lawyer’s or judge’s role.”66 The reason is that the kind of rule-of-law concerns that might counsel in favor of the maxim also jibe with the professional expectations as to the judge’s proper role. The authors’ solution is to conflate the two hypotheses: to be drawn to such core maxims just is to follow norms that are “professionally celebrated but legally indeterminate.”67

But now the puzzled lawyer is in a sticky wicket. For she is now presented not with two rival hypotheses, one of which may be vindicated by empirical inquiry, but rather with two different ways of looking at the same legal theory. Under one (“internalist”) view, there are many versions of the theory in question, some of which may be superior to others along certain normative dimensions (rationality, democratic legitimacy, etc.), and some which may produce more legally determinate outcomes than others (itself another normative dimension), but all of which share a commitment to a foundational norm or idea. For example, all versions agree that the constitutional text should be privileged in constitutional adjudication (originalism) or that governmental decision-makers that should calculate trade-offs when allocating governmental resources (CBA).

Under the other (“externalist”) view, the diversity of views that travel under the name of the theory itself—including ones that run contrary to the commitments of the theory’s original proponents—is itself evidence of the theory’s vacuity. The chief virtue of such “minimal prescriptions” is that they enable the lawyers, judges, and law professors who embrace them to validate and reinforce the judicial self-image as a neutral, constrained decisionmaker.68 But the minimal prescriptions are nothing more than that—hollow rhetoric, voiced (whether consciously or not) for the sake of maintaining or improving one’s professional status.

So how should the puzzled lawyer now think of such theories and their minimal prescriptions? One tempting response is to say that the answer depends on her position relative to legal practice as a whole. A lawyer or judge within legal practice might justifiably view them in an “internal” or normative sense, whereas the sociologist might justifiably view them from the outside, as doctrines or purposes recognized by the group in question—in this case, lawyers, judges, and law professors. If that is right, then I have answered my own question by stipulation, insofar as I have posited that our puzzled lawyer is a lawyer. If she is a lawyer, then she likely will (and probably should) adopt the internal account. But a puzzled sociologist or political scientist likely would (and probably should) adopt the “external” account.69

But this answer is unsatisfying because I had reason to ask about a puzzled lawyer. Recall that the authors themselves suggest that looking to the sociological consequences of prescriptive law theories could be instructive for “how we should evaluate and engage the legal theories around us” and useful for “commentators” on public law theories.70 That is the second of their two methodological proposals. Since lawyers, judges, and legal scholars tend to be the ones who evaluate, engage, and comment upon the prescriptive legal theories in question, it is reasonable to assume they would be the consumers of the life-cycle theory (as are economists in the case of CBA). So it seems fair to ask what the puzzled lawyer ought to do when faced with dueling perspectives on originalism, CBA, or any other theory she seeks to understand for the purpose of action.

Perhaps a better route, then, would be for her to devote more thought to what she makes of those banal, minimal prescriptions in their own right. When assessing originalism, for instance, she might ask such questions as whether a judge should in fact begin with the constitutional text when deciding constitutional cases. If so, why? Is it because of the text’s claim to democratic legitimacy? How strong can such a claim really be given that only a small number of white males ratified it and did so over two hundred years ago? Regardless, how much guidance does the text actually provide? Is talk of the document’s “original meaning” just rhetoric designed to mask the discretion that judges actually possess? Should we then not at least be honest about what courts are doing? Or might it be that there is genuine value in maintaining the appearance that judges are principled adjudicators, even when that is not true?71 In any case, if the constitutional text does not form the center of the inquiry, which legal sources ought to? Cases? Do they have any greater a claim to democratic legitimacy? Some other moral or intellectual virtue?

These sorts of questions, of course, are the stuff of constitutional theoretical debate. They are questions about which sources, methods, and values matter for adjudication and legal decision-making more generally. No doubt one could generate analogous questions to ask of CBA, textualism, or popular constitutionalism.

Perhaps something like them is what the authors have in mind when they encourage commentators to focus, the next time a new public law theory comes along, on the “ways in which the theory’s advancement may reshape legal culture.”72 If so, I applaud their efforts. We should remain alert to the way in which new methods for analyzing law may challenge or alter the kinds of sources, methods, and values on which lawyers and courts typically rely. And we should remain sensitive to the ways in which the framing of particular questions exclude certain kinds of arguments, while privileging others.

But I do not see what is gained by calling such questions “externalist” or “internalist” ones. As the authors’ article itself nicely demonstrates, legal theories change over time and take on different meanings and commitments. Invoking the distinction when discussing some particular theory thus risks begging the central questions at issue because what seems “internal” to a theory to one person may well strike another as “external.”73

The authors are hardly the first to succumb to the temptation of conceptualizing methodological debates in law around a dichotomy between internal and external points of view.74 The distinction Ittempts the legal metatheorist because it promises to yield insights free of controversial moral or metaphysical commitments. Maybe that is why the distinction is now endemic to legal theory. But in my view, the distinction is an intellectual crutch that ought to be kicked away for good. It no longer serves any useful purpose, and it blocks clear and creative ways of thinking about law.

Conclusion

Is there a better alternative? I am not sure, but if so, I think it begins with the recognition that two things are simultaneously true: (1) all human endeavors to organize immediate human experience into systems or patterns of thought are imperfect and so contain anomalies and contradictions, and (2) we cannot live or think other than by relentlessly engaging in such organizing and generalizing endeavors, sometimes consciously and often not.75 Accepting (1) means that we should not be surprised by the authors’ observations about legal theories because, as their own illuminating discussion shows, the adulteration process they identify is pervasive in intellectual life.76 Accepting (2) means that there is no escaping the difficulties recognized by (1). So the authors are right that no decision procedure can free judges from the need to make controversial evaluative judgments when deciding cases. But nor can any “perspective” be reached that will free legal theorists (or metatheorists) from the need to make controversial conceptual, causal, or evaluative judgments when analyzing theories for the sake of practical decision-making of any sort.77 If there is no exit from this predicament, then the best the metatheorist can hope for is that she becomes marginally more aware of the “interests and ideals” driving her own judgments and perhaps someday even learns to distinguish between the two. In the meantime, all she can do is keep on trying to get it right, get it right. 78

8Id at 1822.
9See id at 1844–47, 1859–68. The other theories the authors discuss are textualism and popular constitutionalism. See id at 1848–59.
10See Kessler and Pozen, 83 U Chi L Rev at 1821 (cited in note 2) (emphasis omitted).
11Id at 1846 & n 79.
12Id at 1867 (quotation marks omitted).
13Id at 1821.
14Kessler and Pozen, 83 U Chi L Rev at 1822 (cited in note 2).
15Id.
16Id (emphasis omitted).
17Id at 1823.
18Kessler and Pozen, 83 U Chi L Rev at 1823 (cited in note 2).
19See id at 1884.
20Id at 1891.
21Id at 1885.
22See Kessler and Pozen, 83 U Chi L Rev at 1885 (cited in note 2).
23See id at 1885–86, 1891.
24See id at 1891.
25See id.
26Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
27I thank the authors for clarifying that these are, in fact, two distinct research proposals rather than one.
28Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
29Id.
30Id at 1892.
31Id.
32See H.L.A. Hart, The Concept of Law 40 (Oxford 3rd ed 2012). The “puzzled man” was itself a modification of the more famous character, the “bad man.” See also Oliver Wendell Holmes, The Path of the Law, 10 Harv L Rev 457, 459–61 (1897).
33See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (observing that understanding the effects of theories “is integral to understanding why these theories succeed, and to assessing the costs of that success”).
34Pub L No 111-148, 124 Stat 119 (2010).
35Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
36A threshold objection to the point made in the text would be to deny that a prescriptive theory, insofar as it makes claims about values, could be true or false at all. But the authors do not appear to endorse such pervasive moral skepticism. They seem nostalgic, for instance, for a time when constitutional theorists more forthrightly engaged in an “open pursuit of justice.” Id at 1828.
37Id at 1824 (emphasis added).
38Id.
39Kessler and Pozen, 83 U Chi L Rev at 1885 (cited in note 2).
40See, for example, Suzanne Goldenberg, Work of prominent climate change denier was funded by energy industry (The Guardian, Feb 21, 2015), archived at http://perma.cc/SUT7-UFXA.
41This might be true even if the theory’s proponents are not consciously pursuing these goals. See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (emphasizing the need to look at the “unintended effects of prescriptive legal theories”).
42See generally, for example, Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Oxford 1992); Robert W. Gordon, Historicism in Legal Scholarship, 90 Yale L J 1017 (1981). Though I recognize that this interpretation of critical legal history is controversial, but I believe it is trueright. Still, I cannot defend that view here. I thank Professor Oren Bracha for pressing me on this point.
43See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2) (describing the “exogenous hypothesis” as the claim that “highly adulterated legal theories persist because they serve interests and ideals that are not compassed by the theories themselves”).
44Difficulties remain, however, including what it means to be “similarly situated” and to “adopt” a particular theory. Measures of hierarchical status will also be controversial.
45Kessler and Pozen, 83 U Chi L Rev at 1888 n 285 (cited in note 2), citing generally Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in Imre Lakatos and Alan Musgrave, eds, Criticism and the Growth of Knowledge 91 (Cambridge 1970).
46Kessler and Pozen, 83 U Chi L Rev at 1887–89 (cited in note 2).
47Id at 1888.
48See id at 1889 (“Nonetheless, we do not think this hypothesis offers an actual alternative to our own hypothesis.”).
49Id at 1889–90 (quotation marks omitted). The textualism example is theirs. See id at 1889. The CBA example is my own.
50See Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
51See id at 1889–90.
52Id at 1890.
53Id. Note what is and what is not at issue here. When explaining case outcomes, the indeterminacy of legal doctrines or decision procedures count in favor of alternative, “nonlegal” explanations of the decisions because the legal indeterminacy suggests that something else must be doing the causal work in producing the outcome. Here, though, the goal is not to explain case outcomes but to explain theory adoption. Thus, the question is why lawyers, judges, and scholars would adopt a theory in spite of its inability to generate determinate results. So it is the theoretical value of determinacy for legal professionals that is at issue, not whether the theory in fact yields determinate results. This distinction is important for understanding the point that follows in the text.
54Kessler and Pozen, 83 U Chi L Rev at 1844 (cited in note 2).
55Id at 1845.
56Id, quoting Keith E. Whittington, The New Originalism, 2 Georgetown J L & Pub Pol 599, 602 (2004).
57In fact, I suspect that is true, as a descriptive matter.
58Kessler and Pozen, 83 U Chi L Rev at 1889 (cited in note 2).
59Id at 1890.
60See id at 1840–41 (observing that due to “professional feedback effects,” including the revisions to a theory “intended to make the initial idea not just more politically palatable but also more intellectually and institutionally sound,” it may be that “[w]hat we are calling a process of impurification can thus be seen as a process of purification from another perspective: the very moves that undermine the theory’s initial normative aspirations may be ones that make it conceptually richer and more refined”).
61See id at 1885.
62Kessler and Pozen, 83 U Chi L Rev at 1891 (cited in note 2).
63Id at 1890–91.
64Id.
65See notes 31–38 and accompanying text.
66Kessler and Pozen, 83 U Chi L Rev at 1890 (cited in note 2).
67Id.
68Id at 1890.
69But see David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan L Rev 575, 587 (1984) (drawing a distinction between “doctrinal” and “empirical” legal studies and suggesting that the contrast is “similar to that between theology and the sociology of religion. Theologians develop ideas about the world and humanity from within an authoritative tradition. Sociologists of religion look at theological production from the outside, attempt to account for it, and try to trace its impact on society”).
70Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
71See Deborah Hellman, The Importance of Appearing Principled, 37 Ariz L Rev 1107, 1139–51 (1995) (arguing that the Supreme Court properly takes into account its own reputation for being principled on the ground that doing so may be necessary to ensure that it can enforce its judgments generally and thus legitimately).
72Kessler and Pozen, 83 U Chi L Rev at 1892 (cited in note 2).
73For example, at one point the authors note that some originalists think other originalists are not really originalists, with the result that when the authors see one (adulterated) theory of originalism, others see multiple originalist theories, with some being more deserving of the name than others. See id at 1835 n 37. To this objection the authors respond that they are content with the accuracy of their own account because “[t]he best a descriptive (meta-)theory such as ours can do is to acknowledge and assess this disagreement from an external perspective.” Id. The response makes it sound as if the authors do not take any substantive stand on what originalism as a theory of constitutional interpretation really is. But they do (and must) offer a substantive account of what originalism is. What unites originalists, in their view, is their commitment to “the decisional centrality of the constitutional text.” Id at 1834. That sounds like a plausible view, but the point is that it is a substantive, interpretive claim about what the object of their analysis is, which makes them vulnerable to the charge that they have misunderstood that object. I take this to be Professor Lawrence Solum’s point when he wrote, in response to an earlier draft of Kessler and Pozen’s article,
If you want to write about originalism as a constitutional theory, then you need to . . . dig into the actual theories advanced by originalists. This is hard work. It means that you actually have to read and analyze the theoretical literature, reconstruct the theoretical positions, and then consider the evolution of ideas and the shape of current theoretical landscape.

See Lawrence Solum, Kessler & Pozen on the Development of Normative Legal Theories (with Commentary on the History of Originalist Theory), Legal Theory Blog (Mar 30, 2016), archived at http://perma.cc/8FF2-XB25. The problem with the internal/external distinction, in my view, is that it seduces the metatheorist into thinking that she can study a theory or practice without doing the “hard work” of trying to understand the purposes, doctrines, and concepts that constitute it. That is true even if—especially if—one’s ultimate conclusion is to reject its central purposes as misguided, its doctrines as causally inert, or its concepts as incoherent.
74See generally Charles Barzun, Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship, 101 Va L Rev 1203 (2015) (surveying and criticizing the use of this distinction in legal scholarship).
75Even framing the issue in this way is controversial insofar as it suggests that there is such a thing as pure, unconceptualized “experience” that we then organize by imposing concepts on it. Some philosophers have denied the intelligibility of such a view. See generally, for example, Donald Davidson, On the Very Idea of a Conceptual Scheme, 47 Proceedings and Addresses of the Am Phil Assn 11 (1973) (“I want to urge that this second dualism of scheme and content, of organizing system and something waiting to be organized, cannot be made intelligible and defensible.”); Wilfrid Sellars, Empiricism and the Philosophy of Mind (Harvard 4th ed 1997). But if true, this fact just reinforces the main point, which is that all our cognitive judgments are in some ways contestable and controversial.
76Kessler and Pozen, 83 U Chi L Rev at 1868–80 (cited in note 2) (identifying a similar pattern in the life cycles of legal doctrines, political parties, and scientific theories).
77See Ronald Dworkin, Objectivity and Truth: You’d Better Believe It, 25 Phil & Pub Affairs 87, 88–89 (1996) (arguing, in the context of debates about the nature of morality, that “Archimedean” theories, which “purport to stand outside a whole body of belief, and to judge it as a whole from premises or attitudes that owe nothing to it,” are misconceived).
78Loverboy, Working for the Weekend (cited in note 1).

Response

Cost-Benefit Analysis

Online 83

Everyone’s watching, to see what you will do.
Everyone’s looking at you, oh
Everyone’s wondering, will you come out tonight.
Everyone’s trying to get it right, get it right.

Loverboy 1

1Loverboy, Working for the Weekend (Columbia, 1981), archived at http://perma.cc/29FX-786L.