The Statutory Interpretation Muddle

By: Richard H. Fallon, Jr.

Reconstituting We the People: Frederick Douglass and Jürgen Habermas in Conversation

By: Paul Gowder

Algorithmic Advertising Discrimination

By: Joseph Blass

This Isn’t Lochner, It’s the First Amendment: Reorienting the Right to Contract and Commercial Speech

By: William French

Accredited Investors: A Need for Increased Protection in Private Offerings

By: Christopher R. Zimmerman

Lincoln Lecture: The Revolutionary Origins of the Civil War

By: Gordon S. Wood

NULR Online Essay: Foreign Corruption of the Political Process Through Social Welfare Organizations

By: Norman I. Silber

NULR 2019 Symposium: Rethinking Solitary Confinement

The Statutory Interpretation Muddle

By: Richard H. Fallon, Jr. | October 1, 2019

Debates about statutory interpretation typically proceed on the assumption that statutes have linguistic meanings that we can identify in the same way that we identify the meaning of utterances in ordinary conversation. But that premise is false. We identify the meaning of conversational utterances largely based on inferences about what the speaker intended to communicate. With legislatures, as now is widely recognized, there is no unitary speaker with the sort of communicative intentions that speakers in ordinary conversation possess. One might expect this recognition to trigger abandonment of the model of conversational interpretation as a framework for interpreting statutes. Instead, interpreters invent legislative intentions—purportedly “objective” ones for textualists—or purposes. With those inventions in place, judges and theorists then carry on talking about what statutes mean, or would mean to a reasonable person, as if there were a linguistic fact of the matter even in intelligibly disputed cases. But this is a deep and systematic error. Mainstream thinking about statutory interpretation needs a major reorientation. Contrary to widespread impressions, debates about statutory interpretation are not about what statutes mean as a matter of linguistic fact, but about which grounds for the attribution of an invented meaning would best promote judicial and governmental legitimacy. Having recognized that the model of conversational interpretation cannot ground claims about statutes’ meanings in disputed cases, we also need to rethink the role of legislatures and courts in a political democracy. There are limits to what legislatures can reasonably be expected to accomplish. Courts need to play the role of helpmates to the legislature, not just faithful agents. In the interpretation of statutes, linguistic intuitions should matter, but primarily for normative reasons, involving justice and fairness in the coercive application of law, and not because they reveal the legislature’s linguistically clear dictates.

Reconstituting We the People: Frederick Douglass and Jürgen Habermas in Conversation

By: Paul Gowder | October 1, 2019

This Article draws on Black American intellectual history to offer an approach to fundamental questions of constitutional theory from the standpoint of the politically excluded. Democratic constitutional theory is vexed by a series of well-known challenges rooted in the inability to justify law without democracy (“the countermajoritarian difficulty”) and the inability to justify any particular composition of the popular demos without law (“the problem of constituent power”). Under conditions of genuine egalitarian political inclusion, a constitutional conception of popular sovereignty derived primarily from the civic republican constitutional patriotism associated with Jürgen Habermas and others can resolve these challenges by providing a conceptual basis for understanding the constitutional demos as a corporate body extending across time and capable of ongoing political legitimation. Unfortunately, the constitutional conception cannot justify states, such as the United States, characterized by the persistent exclusion of some legitimate members of the demos from political institutions. The resolution to this problem can be found in an important tradition in Black American constitutional thought, beginning with Frederick Douglass, which represents American constitutional institutions as conditionally worthy of attachment in virtue of their latent normative potential. The correct conception of constitutional legitimacy for the United States combines Douglass’s insights, and those of his intellectual heirs, with those working in the tradition which Habermas represents.

The Revolutionary Origins of the Civil War

By: Gordon S. Wood | October 1, 2019

This Essay is based on a lecture delivered on October 10, 2018 at Northwestern Pritzker School of Law as the third annual Abraham Lincoln Lecture on Constitutional Law.

Nw. U. L. Rᴇᴠ.

NULR 1L Writing Competition: Dred Scott v. Sandford (Dissent)

April 24, 2019

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Walter was one of the winners. History will not look kindly upon this Court’s […]