Reflections on President Trump's "Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence"

 

Pix credit here

 

 

July 4 is celebrated in the United Sates as Independence Day--the day when the Continental Congress is said to have ratified the Declaration of Independence. In past years I have posted U.S. Independence Day  reflections to this site (here, here, here, here, here, here, here, here, here, here, here) as a way to commemorate the event and celebrate the holiday.

For this year I again offer a reflection. This year the focus is on President Trump's quite profound July 4th message to the nation: Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence, the text of which appears in full below. 

1. President Trump speaks to the utility of text as a means of enshrinement.  

 On July 4, 1776, the cause of American liberty was enshrined in ink when 56 patriots gathered in what is now known as Independence Hall in Philadelphia, Pennsylvania, to sign the Declaration of Independence. They enshrined a divine truth that changed the world forever when they declared, “all men are created equal.” (Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence)

To enshrine a thing, at least from the 1500s,  is to "enclose [something] in or as in a shrine; deposit for safe-keeping," The shrine itself is a reliquary--a space where something that radiates holiness or connection to something sacred, whether in a religious or social or political sense, may be encased. Perhaps also it is a place where it can be entombed, to be brought out on holy days of obligation or where some sort of celebration necessarily connecting the present to a "big bang" sacred past can be underscored--or at least performed. And perhaps, by 2025, the best thing one can say about the Declaration of Independence, is that, like other holy relics for faith communities--is that it is to be venerated. But like saints and holy martyrs, or like the hammer of Thor perhaps, its is a historical document rather than one that has any relevance to the constitution and operation of the thing it made possible. Americans do like their relics--and increasingly they appear to prefer their relics dead, or at least confined within the inescapable prisons of time. 

2.  But the Declaration of Independence is not merely  a relic enshrined both on paper and in the objects that can be venerated in original form and, reproduced, hung up on the wall of the family parlor (assuming people have parlors anymore). The Declaration of Independence is now an Ikon in the form of a reliquary of text on paper.  It is a "likeness, image, portrait; image in a mirror; a semblance, phantom image" of something that is itself holy and unapproachable. 

As we honor 249 glorious years of American independence, we celebrate these rights upon which our nation was built—and we pay tribute to the titans of freedom who risked their lives, fortunes, and sacred honor to secure our sovereignty. (Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence)

 The Declaration of Independence, then, is a sort of Ikon for iconoclasts, understood in their historical sense as those who find the veneration of images of the holy a profanity. Our "titans of freedom" are those who may be reached through the intercession of Declaration by the ritual invocation of its sacred ceremonials of rights and risk. The sacred journey is the essence of the Declaration, and its rights a view of the face of the divine embedded in text and enshrined in the document the embers of which can still be recreated through an intense interaction with the Ikon itself.

In June 1776, Thomas Jefferson began drafting what would later become one of the core foundational documents of the United States. After 17 days of writing and several days of deliberations, revisions, and scrutiny over every line and every phrase, on July 4, 1776, Jefferson and his fellow signatories formally adopted the Declaration of Independence.

Though the consequences of their actions were far from certain, the Second Continental Congress pressed forward with fierce determination, clarity of purpose, and an unshakable faith in God’s divine providence. Our Founding Fathers boldly proclaimed “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence)

Perhaps it is just as well that the Declaration is now reduced to a representation of itself as a historical journey competed and then realized anew in every generation.  In the past, drawing on the Declaration as a living instrument of political norms, has sometimes come in times of and sometime have justified political and social instability for good or ill (eg here, here, and here).  

3.  It is in that ceremonial of memory that one might re-animate the spirit of the sacred parents through the invocation do their sacred text that itself reflected a holy journey toward a vision of rights the fulfillment of which set the nation on the course it currently finds itself.

To this day, these words give life to our Republic, stir the hearts of every citizen, and animate our way of life. The Declaration of Independence was not just a statement of political protest but a revolution in moral and political thought. For nearly two-and-a-half centuries, there has been no greater barrier to tyranny and oppression than these mighty words, rooted in “the Laws of Nature and of Nature’s God.”  (Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence)

And what is it that this sacred ceremonial ought to animate? 

To this day, these words give life to our Republic, stir the hearts of every citizen, and animate our way of life. The Declaration of Independence was not just a statement of political protest but a revolution in moral and political thought. For nearly two-and-a-half centuries, there has been no greater barrier to tyranny and oppression than these mighty words, rooted in “the Laws of Nature and of Nature’s God.”(Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence)

Perhaps the spirit of revolution, one that continues to be guided by the embrace of the "Laws of Nature and of Nature's God." (Ibid.). One can, in the manner of religious ecstatics, approach a closer connection to the core of the spirit of the Revolution through a process, in every generation, of continuous self.-revolution, in union with a like minded community, against those who fail to the divine message accessible through the Ikon in its textual reliquary..  

4.  And that brings us to the present--as a nation, whose sovereign authority is guided by the Iconic text but the application of which is entrusted to those selected, from time to time, for that task.  

As we approach 250 years of independence, one year from today, my Administration continues to work tirelessly to revive our sovereignty, restore our strength, and reclaim the sacred ideals articulated in the Declaration of Independence.(Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence))

And then, in language that recalls a similar project of the Chinese, one meant to understand that for its realization of potential in its new era of historical development, one ought to rely on those charged with that task, to move the nation more firmly toward the realization of the fruits of the new era of its historical development--though in the case of the United States, that requires a movement forward to return to the iconic instructions of the holy journey toward eternal truth embedded in and accessible through  an ecstatic engagement with its reliquary spirit. 

Today, we summon the courage of every legend of liberty who bravely signed his name to the Declaration of Independence 249 years ago—and we invoke the spirit of 1776 to propel our Nation into a new era of restoration, renewal, confidence, and strength. (Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence)

And that ought to provide a substantial amount of inspiration on this the anniversary of the declaration by our forebearers, of an intent to wrest independence from those who made the establishment of what would become the Republic possible (by good and bad acts, intent, and change).  

That, anyway, may be one way in which one might approach this text and the rituals of commemoration appropriate to the day and the cause.  

The Judicial Equity Power, the Lawyer, and the Legalization of Politics: President Trump Issues Guidance on Demand for Security Where Courts Issue Injunctions or Restraining Orders

 

Pix credit here (Hogarth, the Bench 1758)

 

One of the great taboos of contemporary discussion revolves around the narratives of courts and their role within the political system of this (or in variation any) liberal democratic republic.  There are many excellent reasons, rooted in history, but also in the development of the normative bedrock on which the American Republic  has been erected, for both the development of this narrative and its protection. Foremost among these untouchable narrative premises (again on which our cognitive cage of all things judicial are grounded) are notions of (1) judicial neutrality (bounded by the disciplinary power of appeal, the role of precedent, rules of statutory construction bounded at some level by text, the requirement for decisions reasoning, the customs of deep embedding within jurisprudential conversations, and the threat of impeachment or removal), of (2) limited  powers (bounded by politically and constitutionally derived notions of jurisdiction), and of (3) a limited and rationalized framework from exercising a remedial authority.

That remedial authority, of course, has been evolving over the course of the last century and into this one. It has been moving from its centering in notions of post facto compensation of some sort (built into ideologies manifested in case or controversy limitations on bringing claims grounded in injury) and of the inherent limitations of the judicial power (grounded in history and tradition, and more recently around issues touching on separation of powers at the federal level) toward the sensibilities and broadening scope of remedial authority increasingly built into equitable remedies. By the end of the 20th century, the authority of courts to "do right" by infusing traditional forms of equity with new vigor and extending the scope equitable orders in time and place, courts increasingly bumped up against questions of the limits of remedial authority. And not just with respect to equity. Traditional notions of punitive damages, for example, have also been the subject of jurisprudential discussion. The development of a reinvigorated jurisprudence of official abuse of discretion (with a private sector analogue in breach of fiduciary duty), deploying at times bot the sensibilities of equity and its remedial palette continues into current times

There are many many reasons for this evolution. Some of it might be traced to the great social movements of the 20th century and the evolution of notions of equality and "right" with respect to identity issues. Some of it rooted in the relative efficiency of seeking remedy in courts rather than through the legislative or administrative authority of the political branches.  Some of it focused--and now increasingly so--on the use of the courts against the state and its apparatus itself. The courts, generally, have been welcoming, and most social organs have acquiesced--perhaps reflecting  evolving tastes for the practice of separation of powers in the US, and perhaps reflection willingness to judicialize disputes and conversations that had, in another age, been resolved within non political spheres, or which had focused energies on the political branches. The mountain of academic attention to the phenomenon, as well as (increasingly) academic sector advocacy around these (discerned) trends--and the construction of narratives of progress or threat built around them have occupied much space in those sectors in a way that might suggest that wit respect to courts, at least, political discussion has assumed a techno-bureaucratic and elite character which separates the debate "that counts" from the masses who are expected to receive the products of these debates and then exercise their (limited) franchise accordingly. That is fair, one can suppose, given the transformation of both governance and political tastes for popular involvement.  But the opposite is also fair. The absence of any sort of popular discussion about the nature and extent of jurisdiction, equity, and its remedial palette, in this respect might be lamented in a Republic that is supposed to be popular--or it might suggest that, as in the 18th century, popular meant masses guided by those whose social (and now economic and technical) positions suggest a position of authority to lead and guide.  

Nonetheless, while the focus might be on the judge, the lawyer plays a substantial role both in the evolution of judicial practice and in shaping the "fact bundles" through which this jurisprudence is developed. Lawyers have helped shaped the current culture and understanding of the judge and the judicial function. They have helped empower and enlarge the role of the courts not merely as sites for the resolution of private disputes, but also as sites for the articulation and resolution of political issues with respect to which the political branches may not be as helpful. Sometimes this requires action against the State; sometimes it requires actions in court to reconcieve law (text of common law/equity) in ways that serve social, cultural, political and other goals. In the process the scope and practice of politics has also been reshaped, and with it the role of lawyers and the understanding of what rule of law means, both with respect to "rule" and "law." (My earlier discussion Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive Process;Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges). Judges make and shape; lawyers facilitate; these shape their relationship with the political apparatus of the state and in the process embeds them within it as both legal and political actors. That suggests, in turn, obligation, duty, and constraint under law.

It comes as no surprise that the objects of all of this activity in the courts, especially officials in the executive branch and its organs, and of the lawyers that fuel them, have sometimes found the divergence of what it might prefer to be political issues into courts to be either an annoyance or a threat. The current administration is no exception. Yet the intensification of these efforts, and their success, in the 21st century, inevitably would invite push back. And so, in that spirit, it is also no surprise that President Trump has issued an Executive Order on 11 March, Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c), one that represents what is likely to be the first salvo in this "conversation" about the exercise of equity remedies in the courts. What has most annoyed this Administration (like its predecessors to some extent) has been the increasing effective effort to induce lowest level courts considering an issue within their jurisdiction to issue equitable permanent or provisional) with nationwide effect.  The counter thrust by the Trump administration is, as a function of their level of annoyance, fairly mild--to insist that such injunctive orders include security equal to the full costs of potential damage to the State. 

That requires application of Federal Rules of Civil Procedure 65( c) cover the full amount of potential injury to the state:

(c) SECURITY. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

Of course, the Administration means to push the courts to focus on the potential costs to the State as they determine the extent to which they will issue injunctions and restraining orders under FRCP 65; and they may desire to use Mr. Trump's Memorandum as the basis for forcing situations that can be used to take refusals to require giving full and adequate security as a means of testing the limits of the proper exercise of judicial discretion under FRCP 65 (and also FRCP 65.1 on actions against security providers). The issues are not entirely hypothetical. There is caselaw, or at least discussion (however authoritative one wants to make it) in which judges have argued that it is within their discretion to require a security equal to no money.

[t]he law is clear that a federal district court has broad discretion to set a bond amount as the court sees fit and may waive a security requirement altogether as Judge Vorhees did here. Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013)(citation omitted); see also Aoude v. Mobil Oil Corp., 862 F.2d 890, 896 (1st Cir. 1988)("posting of a bond is not a jurisdictional prerequisite to the validity of a preliminary injunction"); Clarkson Co, v. Shaheen, 544 F.2d 624, 632 (2nd Cir. 1976)("[B]ecause, under Fed. R. Civ. P. 65, the amount of any bond to be given upon the issuance of a preliminary injunction rests within the sound discretion of the trial court, the district court may dispense with the filing of a bond." (citations omitted). (Bolier & Co., LLC v. Decca Furniture (USA), Inc., 2015 NCBC 52; cited in  Something That You Might Not Have Known About Injunctions (JD Supra).

Here the equity power of the courts meets the discretionary power of the judge in determining the equities of compliance with rules limiting the extent of equity remedial power. Whatever happens, it is clear that this is another issue that litigants will have to contend with as they choose when and whether to take their disputes with the Trump administration to the courts, the streets, the States, or Congress.  The object, of course, is to make the "real costs" of litigation more transparent and to shift that cost, or the risk of incurring that cost, more fully onto those who seek injunctive relief or restraining orders.The effect may be to reduce the willingness of litigants to seek these orders or perhaps to seek these orders with nationwide effect. For the political classes the question is whether or to what extent such actions are to be encouraged or discouraged when the object of the litigation is the state itself.

Nonetheless, the real object of this effort may not be primarily the litigants but the judicial system itself --lawyers and judges--and their jurisprudence and practice with respect to FRCP 65 injunctions and restraining orders. In his 6 March 2025 "Fact Sheet: President Donald J. Trump Ensures the Enforcement of Federal Rule of Civil Procedure 65(c)" the President made this clear in suggesting the rationale and approach that is carried forward to the 11 March 2025 Memorandum. The three rationales: (1) ensuring accountability in federal courts (2) ensuring government serves the American people; and (3) ensuring accountability clarify the nature of the objectives of which these actions forms a part. 

With respect to accountability, the "Fact Sheet" focuses on the determination of an accurate assessment of financial harm borne by the State in the context of injunctive or restraining order relief.  Here the issues of good faith and the methodologies used to calculate injury will be at issue.  The object is to increase the costs of such litigation to reduce the potential for what the State might view as frivolous claims. The larger issue, of course, is whether the State can be said to suffer financial harm in such cases. With respect to accountability, the focus turns directly  to judges, and indirectly to lawyers. "Unelected district judges have issued sweeping injunctions beyond their authority, inserting themselves into executive policymaking and stalling policies voters supported. Activist groups file meritless suits for fundraising and political gain, facing no consequences when they lose, while taxpayers bear the costs and delays." (Fact Sheet:). 

With respect to judges the claim focuses on abuse of discretion and separation of powers--but mostly abuse of discretion that creates a separation of powers issue. With respect to lawyers, the issue turns on the ethics of representation where the lawyer might or ought to know that the claim is frivolous. This, in turn, enlarges an much older debate about the ethical obligations of lawyers to represent and their duty (if any) to effectively avoid making frivolous claims. The issue, though has tended to turn on intent and a wide margin of error has been permitted (Cf., Fact Sheet: President Donald J. Trump Addresses Risks from Perkins Coie LLP). But the size of that margin of error and the extent of the due diligence obligations of lawyers before they take on a case that might be frivolous may be in the cross hairs of this policy. It is possible to the development of new rules of facilitation that is emerging in transnational law might find  a home in this new regulatory space.  Whatever the source, however, the risk of representation will likely increase, and with it the greater the likelihood of substantially enhanced due diligence requirements--without for the moment any safe harbor.

The last targets judges--and the jurisprudence of the extent of the judiciary's equity powers: "Multiple Supreme Court justices have recently warned that “single district-court judges” acting outside their judicial power are “abusing” the power entrusted to them." (Fact Sheet). Again the two issues align--aone, buse of discretion (here the allusion to incompetent judges in the (Fact Sheet); two, the constitutional limits of the judiciary's equity powers. The former, in normal curse, might hint at a much more aggressive use of the impeachment power (with pressure for the judiciary to better police its own house). These issues then touch on judicial independence and its limits in ways that have not been discussed for a very long time. The later brings back a discussion about the scope of equity power that had last been contentiously debated  during the era of judicial oversight of school integration cases (e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30–31 (1971);  Milliken v. Bradley, 418 U.S. 717, 744 (1974); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434–36 (1976)) but also in play in cases involving other areas, for example elections: Race, "The Race," and the Republic: Re-conceiving Judicial Authority After Bush v. Gore). Here it is possible that new context will breath new life into old cases; or that old cases will be the springboard for some quite different jurisprudence.  The safer course would be to transpose emerging abuse of discretion jurisprudence from the administrative state to the judiciary--but such a transposition would harm the narrative of the judicial power as sui generis. And always, the lawyer in the middle.

These efforts will not go unchallenged. In addition to the expected litigation, the American Bar Association has issued several statements advancing their own view of the nature of the judicial power, the character of the law disputes about which the courts oversee, and the role of the lawyer. See, e.g., The ABA supports the rule of law (10 February 2025); and The ABA rejects efforts to undermine the courts and the legal profession (3 March 2025). The legalization of politics, and the judicialization of political disputes again advances its forms and characteristics in this new era (see further: "With the rarest of exceptions": Statement of the Association of American Law Schools on Executive Branch Compliance With Court Orders and Text of ABA Statement "The ABA Supports the Rule of Law").

The text of Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c), Fact Sheet: President Donald J. Trump Ensures the Enforcement of Federal Rule of Civil Procedure 65(c)",  and Fact Sheet: President Donald J. Trump Addresses Risks from Perkins Coie LLP; The ABA supports the rule of law (10 February 2025); and The ABA rejects efforts to undermine the courts and the legal profession (3 March 2025) follow below.

The Federal Executive Reponse to the Supreme Court's Dobb's Decision: Executive Action by the President

 

 

Every opposition party in the United States denounces  the use of Executive authority by the political party in power.  They devote tremendous energy, sometimes successfully top challenge such assertions of  executive authority as undemocratic, as a violation of the rule of law, and in violation of administrative practice and its regulatory constraints. In the process much administrative law has been made in the United States, and cultures of administrative operation, especially with respect to the exercise of discretion and the limits of administrative authority, have been made.  Executive authority was a battleground during the Trump Administration (e.g., Department of Commerce v. New York, No. 18–966, 588 U.S. ___ (2019) (exercise of discretion by an administrative apparatus). It is one during the Biden Administration as well (e.g., West Virginia v. EPA, No. 20–1530, 597 U.S. ___ (slip op., 30 June 2022) (extent of delegated power to administrative agencies).

 Until they become the political party in power.   

Pix Credit here

Pix Credit here

In every case, the president at the head of the political party in power has argued both an autonomous right to interpret the constitution, and the offending opinions if any, and sought to exercise what is described as a popular mandate legitimated by victory at the polls. These are the very things that once argued by the opposition when they were in power, is viewed as disrespectful and a threat to the constitutional order of the Republic. In this way the borderlands of the division of authority between executive, legislative, and political authority, under the leadership of elected officials and unofficially guided by the sensibilities of the political parties to which most owe allegiance, can serve as the space for contests f interests that in an odd way preserve the overall stability of the Republic. That stability is thus both dynamic and a function of the meowings that sometimes passes for the political agitation of political factions organized as and within the major American political parties. 

These contests reach their zenith when one or another of the political ranches appears to disturb  even shaky truce lines in cultural, politically, socially, or religiously  important issues. Women's autonomy, reproductive rights, and the protection of the unborn lies at the core of one such very shaky truce system. It was disturbed by the aggressive judicial intervention in Dobbs v. Jackson Women's Health Organization, No. 19–1392 (slip op. 24 June 2022). For my prior  analysis here, and here).  And the push back from the President, representing a potent and large portion of the nation opposed to the decision and its substance, should not have been unexpected. Again the dialogue between two coordinate branches, each limited in the tools available, and the extent of their authority, now starts its next phase.  

The majority of the Supreme Court can content itself only with the law of the case in Dobbs, and the expectation that inferior courts will apply its holding in future cases.  Yet American common law traditions suggest that unpopular decisions may be quite narrowly construed--and often distinguished, until it too finds itself on the wrong end of stare decisis.  And the courts can be overwhelmed with cases suggesting exceptions.  This is beyond the likely judicial contests over state over exuberance is interpreting the4 decision to its own political ends, and the counter thrusts (already started) of individuals cloaking their rights in another conservative principle--the right of free exercise of religion to protect the aut0nomy of women in their reproductive choices. 

The President can content himself only with the power of Executive Order, one that the members of his pwn party sought to curtail significantly between 2016 and 2020 when it was being wielded against them by Mr. Trump and his party. These actions, too, may be overwhelmed by litigation and challenge. And they can reach only as far as the administrative authority under the control of the President reaches.  That, however, can be sizeable in chunks.

 The President has acted.  The Executive Order issued 8 July 2022, along with a FACT SHEET distributed by the White House follows. Especially useful are efforts to batter publicize and simplify the means for individuals to protect their (reproductive) rights in the face of state interference (see, eg here). There are a number of interesting approaches in the Executive Order.  In addition to information campaigns and compliance mandates against fraud and deceptive practices, the Executive Order along with efforts to encourage litigation and counseling  by the organized bar (Section 3--Protecting Access to Reproductive Healthcare Services). More interesting still, perhaps, is the intent to weaponize existing federal privacy authority in Section 4 (Protecting Privacy, Safety, and Security)--perhaps in this case to make it much harder for states to proceed against individuals seeking to exercise reproductive options in other states where such options may be lawfully undertaken.  These will likely be subject to countermeasures by opponents. In the process, the law and practice of federalism in this Republic will surely be significantly altered.The irony is that both political party organizations will remain adept at both defending and challenging Presidential assertions of Executive authority. While they will likely seek to distinguish good (theirs) from bad (their opponents') efforts, it is likely that the new equilibrium will both refine the art of executive authority and the rules under which it can be exercised.  In the process compliance and abuse of discretion will also be transformed as governing principles.

13-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 14 Institutional Arrangements)

(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

These Commentaries form part of a larger Coalition for Peace and Ethics Project on the Effort to Elaborate an International Instrument on Business and Human Rights. Go to CPE Treaty Project Page: HERE.

This Part 13 focuses on Article 14 of the Zero Draft (Institutional Arragements). 

Chapter 1 (Chapter Summaries) Roadmap for the Study of the Ideology and Systems of U.S. Law: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

Summary book organization and Chapter 1 Summary follows.

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute. 

This post serves to organize the contents and links to my on-line discussion of the book.  The Contents and Links; Chapter Summaries and Draft Teaching Notes follows.

Preface (Chapter Summaries): "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute. 

This post is part of a group of posts that will provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions another set of posts will be used to circulate a chapter-by-chapter-based draft Teacher's Manual. Comments welcome for all.

 All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

The Preface follows.

Announcing Future Publication of "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I am happy to announce that Carolina Academic will soon be publishing my text, tentatively titled Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1). Law embedded within systems in the United States tends to be mystifying to everyone, even individuals trained in law elsewhere. By the end of the usual course of U.S. legal education most students would roughly know it when they encounter it. But they would be hard pressed to explain it either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists. There are a number of distinct kinds of law in the United States, and each of them are deeply embedded within their own systems of generation, interpretation and application, which then somehow work together It made sense, then, especially as a century of legalization forces more and more people world wide to bump up against aspects of that system, to try to find a way to explain law, the systems within which it is embedded, and the way that this embedding substantially defines the character of both.

The book is based on insights from teaching first year students, foreign lawyers and students of politics and policy (Elements of Law Series), at Penn State. The course had a short and controversial history there but engagement with the course in the face of student confusion over the value of the course and its content within law studies (e.g., here) began my thinking about how one could go about thinking through the systemic element in the distinct elements of law (common law, equity, statute, administrative regulation, public-private hybrids, and societal governance), their systemic qualities (that distinguish each) and their quite distinct relationship with systems of government. Indeed, that fundamental relationship between systems of law and systems of government, so essential to the understanding of how law "works" in the United States, is rarely centered in legal studies.

This post includes the table of contents of the work along with the more or less official book description. Future posts will set out more detailed descriptions of each chapter and a brief summary of the chapter. An initial circulation draft Teacher's Manual will also be posted in a series of future posts. Comments welcome for all.

All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

Sara Seck on "Emerging Market Multinational Home States, Extractive Industries, and the Inside/Outside Problem"

Sara Seck is an Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations.

Professor Seck has recently been considering ramifications of the complexities of globalization and the effects of inbound and outbound investment on the problem of assigning state responsibility for managing CSR within global production chains. At the recent Madrid Workshop on a Business and Human Rights Treaty, Professor Seck spoke to "Business &; Human Rights Treaty Debate: Lessons from the International Law Commission"  ("Ultimately, it would be wise to remember that the negotiation of a text – whether a progressive codification of customary international law or a newly agreed treaty text – is only the first step in the hard work of international law making. This is a lesson that the ILC knows only too well. It is also a lesson well known by international environmental lawyers who have actively pushed for the negotiation of civil liability treaties in various contexts, only to be confronted by the reluctance of states to ratify and implement what has been agreed").

For her guest essay today, Professor Seck provides us with an excellent, timely, and provocative essay, Emerging Market Multinational Home States, Extractive Industries, and the Inside/Outside Problem.  The essay seeks to bridge across the conceptual silos which produces the sort of conceptual fragmentation which at times has so fatally affected even the most modest efforts to move forward the necessary project of developing governance structures for the human rights effects of economic activity.  Particularly significant here is the difficulty of developing coherent systems that cut across human rights and environmental protection, and that are made more complicated as states seek to develop one set of rules for outbound investment and another for domestic operations.  The essay follows.

Part 3 (The CCP and Its Vanguard Role)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

(Pix (c) Larry Catá Backer 2015)

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 3, The CCP and Its Vanguard Role.  It considers Paragraph 1 of the General Program.

Table of Contents 

Chapter 17 (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part IV (The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy ) -- Chapter 17 (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation).

 

Chapter 16 ( The Doctrine of Judicial Review): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part IV ( The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy ) -- Chapter 16 (The Doctrine of Judicial Review).

 

Chapter 15 ( The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 15 (The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution).

Chapter 14 ( The States and the People; Popular Referenda): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 14 (The State and the People; Popular Referenda). 

 

Chapter 13 ( The Administrative Branches: The Non-Delegation Doctrine, An Introduction ): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 13 (The Administrative Branches: The Non-Delegation Doctrine, An Introduction).

Chapter 12 ( The General Government; Separation of Powers and Checks and Balances): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,  

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 12 (The General Government; Separation of Powers and Checks and Balances).