—Richard Albert, Boston College Law School
In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.
This edition of “Five Questions” features Laurence Claus, Professor of Law at the University of San Diego. His full bio follows below:
Laurence Claus is Professor of Law at the University of San Diego. His work focuses on comparative public law and legal theory. He holds B.Econ. and LLB degrees from the University of Queensland and a D.Phil. in Law from Oxford. Before graduate studies, he clerked for the Chief Justice of Queensland, Hon. John Macrosssan, and then worked for the Australian Human Rights Commission President, Hon. Sir Ronald Wilson, on a commission of inquiry into government misconduct, and at the Australian High Court on the Court’s landmark early implied freedom of speech cases. He served for three years in the Office of Foreign Litigation, United States Department of Justice, based at the American Embassy in London, where he helped supervise civil litigation in European domestic courts to which the United States was party. He clerked for Hon. Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit before joining the faculty at the University of San Diego. He is author of Law’s Evolution and Human Understanding (OUP, 2012).
1. Tell us about something you are working on right now.
Constitutional strategies for apportioning power vertically and horizontally, the strategies of enumeration by subject and separation by kind. I have written and continue to write about conceptual flaws in these two strategies, and will be writing about the implications of those conceptual flaws for constitutional interpretation. Relatedly, I’m writing a critique of the American national unitary executive model for two forthcoming conferences.
2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?
I try to demarcate days on which I can write from the start – no email, no checking the news, no admin, no social interactions. When my day starts with those other things, it’s at risk of staying with them too much to get deeply into the zone. That’s especially so when I’m starting something. Once the project is taking shape, distractions don’t distract quite so much. But till there’s a feeling of growing excitement and accomplishment, the siren song of the social world has to be shut out.
3. Whose scholarship jumps to the top of your reading list when she or he publishes something new?
The top of my reading list tends to fill with up-and-coming con law scholars whose insights are less likely to be building on antecedent work of their own with which I’m already familiar, and are therefore more likely to surprise.
4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?
Democracy and Distrust. What justifies wide ranging constitutional lawmaking by people chosen to decide disputes? We see even legal systems that have long resisted judicial lawmaking making exceptions for their constitutional adjudicators. When I was consulting for the American Bar Association’s Rule of Law Initiative on a study of the new Constitutional Court of Jordan, I found myself elaborating in discussions with Jordanian jurists and political leaders on what seemed to me essential aspects of expository opinion writing. When legal systems with no established culture of judicial opinion writing have constitutional adjudication superimposed atop them, those charged with the task swiftly discover that deciding the constitutionality of statutes isn’t like flipping a light switch, turning laws on and off. To fulfil their constitutions’ promises to their people, constitutional courts need to elaborate their reasoning in ways that both add to the law of their constitutions and often “read down” lesser laws to leave governing officials empowered but constrained in their exercise of that power. How to reconcile this role with our commitment to democratically accountable government is a conversation in which Ely just keeps coming up.
5. What are some of the big questions ripe for inquiry in your area of research interest?
How can we better integrate constitutional law theory with jurisprudence? I think we need a well developed theory of law to have a coherent theory of constitutionalism, and this calls for constitutional law scholars and legal philosophers to engage deeply with each others’ projects. Where constitutional law scholarship shies away from that engagement, it is prone to becoming equivocal and to losing long term impact. For example, constitutional law scholarship’s use of the term “authority” not infrequently slides back and forth (sometimes within the space of a paragraph) between serving as a synonym for law and government and adverting to a source of law and government. Such chameleonic usage risks compromising the arguments in which it occurs. Use of “authority” synonymously with law and government can survive and assimilate inside a conventionalist account of law and government, whereas authority as a source of law and government does not fulfill the function in a conventionalist account that it did in historic accounts that saw law and government as expressions of exogenously derived moral rights to rule. Our language of authority and duty to obey did not come from a conventionalist account of law and government, but if the rule of recognition at the core of the legal system is just a social convention, then the whole system is essentially conventional, not authoritarian in the historic sense. We con law types want to talk about what morally justifies attempts at lawgiving, about when law observance is morally required, about how constitutions ought be interpreted. Coming up with answers to any of these questions depends on a coherent vision of the character and role of authority.