Showing papers by "Joseph Blocher published in 2019"

Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights

Abstract: The study of “rights dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can help deepen understandings of the nature of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “doctrinal dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly, for example in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying different constitutional guarantees, and the sometimes inextricable relationship between particular rights and their constitutive doctrines. In this Essay, we explore the definitional challenge—what is doctrine?—before identifying some lessons learned when doctrine migrates between rights, and when it stays home.

King Leopold's Bonds and the Odious Debts Mystery

Abstract: In 1898, in the wake of the Spanish-American war, Spain ceded the colony of Cuba to the United States. In keeping with the law of state succession, the Spanish demanded that the U.S. also take on Spanish debts that had been backed by Cuban revenues. The Americans refused, arguing that some of those debts had been utilized for purposes adverse to the interests of the Cuban people. This, some argue, was the birth of the doctrine of “odious debts”; a doctrine providing that debts incurred by a non-representative government and utilized for purposes adverse to the population do not need to be repaid by successor regimes. This Article tests the historical evidence in favor of the birth of the odious debts doctrine at the turn of the twentieth century by considering the treatment of perhaps the archetypal odious debt: the debt that Belgium’s King Leopold undertook to finance his horrific exploitation of the Congo Free State (“CFS”). In 1908, Leopold was forced to transfer sovereignty over the CFS to Belgium. If the doctrine of odious debts existed at the time, we should see evidence of it in the public debate about whether Belgium was obliged to take on King Leopold’s debts. Based on original archival research into political debates, litigation regarding Leopold’s estate, and contemporary prices and yields of Leopold’s bonds, we see no such evidence.

Free Speech and Justified True Belief

Abstract: Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons. And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally focused on truth alone, as if all true beliefs must be treated equally. This thin account leaves the epistemic theory vulnerable to withering criticism, especially in a “post-truth” era. This Article suggests that the epistemic theory of the First Amendment might be reframed around a different value: not truth alone, but knowledge. Beginning with the tripartite definition of knowledge as justified true belief, philosophers from Plato until the present day have tried to account for what makes knowledge distinct and distinctly valuable. And in many ways law, too, already accounts for the existence and value of justifications, not just true beliefs. Identifying and exploring those threads of constitutional theory and doctrine can help provide a richer account of the cognitive First Amendment at a time when it is sorely needed. Doing so can also help resolve thorny doctrinal problems like those involving professional speech and institutional deference.