Archive | Constitutional Theory

Globally Managing American Speech?

I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later.  Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts.  (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)

This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning.  Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.

Even to “engage” in the process, as a consequence, leads to tears no matter where it goes.  A compromise on the issue will inevitably mean that the [...]

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How Important is the Uniformity of Federal Law?

My co-blogger Ken Anderson recently linked to my friend Amanda Frost’s provocative article, Overvaluing Uniformity, in which Amanda makes the case that the federal courts should not be overly concerned with whether federal law  is uniform.   I disagree, and I think the source of my disagreement is mostly on the question of whether and how lack of uniformity impairs the predictability of the law.  To be clear, this is only part of the paper, but I think it should have received more attention:  As I see it, the predictability objection is more substantial than the article suggests.

In the section on the role of uniformity in ensuring that the law is predictable, the article argues that lower court disagreement does not significantly impair the predictability of the law:

[L]ower court conflicts over the meaning of a federal statute do not create more uncertainty than exists prior to any judicial ruling. If a federal statute is ambiguous, then the law’s requirements are unclear before any court has spoken, which would encourage litigation and leave citizens unsure about how to conduct their business, just as conflicting judicial interpretations would. For example, the uncertainty over whether workers’ compensation insurance premiums were entitled to priority under the Bankruptcy Code was not caused by the conflicting circuits’ views on that question, but rather by the lack of clarity in the Code itself. Indeed, conflicting decisions by circuit courts may often improve predictability, since at least the citizens in those circuits know what the law requires of them for the time being.

Thus, the article reasons, lack of uniformity is not a particularly pressing concern from the standpoint of predictability of the law. It may not be a good thing, but it’s not such a pressing concern that it should really occupy the courts as [...]

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