Originalism and its critics

This quarter I co-teach a seminar on Originalism and Its Critics with my new colleague, Will Baude. I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics. If you are interested, here is our syllabus (Originalism and Its Critics syllabus dec. 12). I will post reactions to the articles as I read them, and perhaps Will will post his own reactions at the Volokh Conspiracy where he blogs.

The Social Value of Legal Scholarship: An Empirical Study

Adam Liptak likes to torment law professors by regularly quoting judges who do not read law review articles. However, a more rigorous test of Liptak’s hypothesis that legal scholarship has no social value is called for, and so below I report some early results from a test that uses event-study methodology familiar from securities class action litigation.

My starting assumption is that if legal scholarship has social value, the publication of any major piece of legal scholarship should be visible in stock market returns. I start with one of the most prominent law books of all–Ronald Dworkin’s Law’s Empire, which was published on January 1, 1986.

lawsempire

Alas, there is no evidence that Law’s Empire had a favorable impact on stock market returns. Thinking that this was perhaps anomalous, I checked Freedom’s Law, which was published on February 27, 1997.

freedomslaw

Again, nothing. A possible explanation is that Dworkin was a lefty, and so his scholarship would most likely have a negative impact on the economy. Accordingly, I also checked the stock-market impact of Antonin Scalia’s A Matter of Interpretation.

matterofinterp

Another discouraging result. Yet I take some comfort in the thought that I have not fully controlled for endogeneity. Maybe, for example, Dworkin timed the release of his books to coincide with declines in the stock market, when a despairing public would seek refuge in philosophical contemplation. Or maybe stock prices incorporated the impact of Scalia at the time of his birth in 1936, as the Efficient Capital Market Hypothesis implies. I believe that these possibilities should be investigated in future research conducted by others.

What has been the effect of the Convention Against Torture?

cat effect

 

The x-axis shows the five years before and after a country ratified the CAT. Year 0 is the year that the country ratified the CAT. For example, year 0 for the United States was 1994, while year 0 for Nicaragua was 2005. The line shows the average torture score for countries during the five years leading up to ratification and the five years following ratification (where 0 refers to frequent torture and 2 refers to no torture). If the average country had reduced torture during this period, then the line would have sloped up.  The data source is Cingranelli-Richards.

The NSA’s metadata program is constitutional

Or so I argue in Slate. Moreover, I believe that advances in Internet communications, data storage, data analysis, search, video surveillance, drones, and sensor technology will eventually render obsolete legal and constitutional privacy protections as they are currently understood. That, in the long run, the “assumption of risk” fiction of Smith will expand, not (as everyone believes) contract. That people will voluntarily give up information to the government in return for security against crime and foreign threats, in the same way that they give up information to Google in return for marginally better search results. That they will not think of themselves as compromising their independence or privacy, just as no one (aside from a tiny minority of privacy advocates) who uses Google really thinks of himself as giving up his independence or privacy. That the resulting society will not resemble 1984 in any meaningful sense (though it may resemble a Philip Dick novel).

Should law reviews publish survey articles?

Tim Wu argues that they should. Survey or review articles, which summarize the state of research but do not make original contributions, are common in other fields, and as Wu explains, there are good reasons for them.

The problem with Wu’s proposal is that law reviews already publish survey articles. They are the first 40 or so pages of nearly every law review article, with the original contribution starting on p. 41. Scholars in other fields do not write articles in this way because they do not need to explain to editors–who are experienced scholars and also rely on referees who are experts on the topic–why their article is a contribution. Because law students screen law review articles, and law students do not know any legal scholarship, every author must start anew with yet another redundant survey that sets the stage for his contribution. So there is no demand for survey articles–if you want to read a survey of customary international law, just find the latest article on this topic and read the first forty pages–and so no reason for people to produce them.

Why human rights?

human rights ngram

Another ngram. This time the blue line is “human rights”; the other lines are “constitutional rights,” “natural rights,” and the “rights of man.” “Human rights” separates itself from the crowd in the 1940s, and then takes off in the 1970s.

Why originalism?

ngram originalism cropped

The blue line shows how often “originalism” appears in books from 1900 to 2010, and the red line shows how often “evolving constitution” appears. The sharp increase in references to “originalism” occurs after 1980. Courtesy Google ngram.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School