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Justice Souter’s Common Law

The first-year law-school curriculum aims to teach students the “common law method.” But exactly what sort of judicial reasoning that method permits and requires has long been the subject of debate. There are multiple models of common law reasoning, not just one. This Article identifies one such model that legal scholars have yet to recognize as a distinct theory of common law adjudication. It is an approach I ascribe to former Justice David Souter.

Seeing Justice Souter as a common law judge is hardly novel; in fact, it is the conventional wisdom about him. But in my view, Souter’s understanding of the process of case-by-case adjudication reflects deeper philosophical commitments—and, for that reason, carries with it more radical implication—than has been appreciated. To support this claim, I compare Souter’s understanding of the common law to two better known rivals—Professor Ronald Dworkin’s “law as integrity” and Judge Richard Posner’s legal pragmatism. I then show how each of the three models flows from its own more general model of practical reasoning.

The upshot of this comparative analysis is a clearer view of a model of common law reasoning that combines elements of the other two but that rejects an assumption common to them both. Like Dworkin’s, Souter’s model sees legal principles embodied in case law; but like Posner’s, it is empiricist and pragmatist in spirit. It can coherently combine these elements only because, unlike either of its rivals, Souter’s model treats factual and evaluative forms of reasoning as continuous with each other, rather than dichotomous. In rejecting the fact/value dichotomy, Souter accords a much greater role to history in common law reasoning than do either Posner or Dworkin. The result is an understanding of common law adjudication that is at once more traditional and more radical than either of its more famous counterparts. I examine that more radical dimension at play in some of Justice Souter’s most famous and controversial opinions, including the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment

In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and, given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.

Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources

In November 2015, the Space Resource Exploration and Utilization Act of 2015 (“SREU Act”) became law. Private space companies hoping to mine asteroids for commercial gain rejoiced. For years, such private companies had struggled to obtain adequate funding and support for their revolutionary space missions due to a lack of legal certainty regarding property rights in space under the vague legal framework of the Outer Space Treaty (“OST”). The SREU Act purportedly eliminated this uncertainty by explicitly granting U.S. citizens property rights in any asteroid or space resource recovered for commercial purposes from space.

 

Nevertheless, much tension remains between this unilateral grant of property rights and the international obligations of the United States under the OST. This Note concludes that the SREU Act abrogates the United States’ international obligations and that the United States should have initiated discussions at the international level first to champion a more effective and long-lasting multilateral solution. Finally, this Note finds this abrogation to be all for naught, as the law itself fails to achieve its goal of providing the private space industry with the legal certainty it so desires and requires.

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