Matthew Steilen | University at Buffalo, State University of New York (original) (raw)

Papers by Matthew Steilen

Social Science Research Network, 2023

Law and History Review

This article focuses on the movement to reform legal education in early national Virginia, offeri... more This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state's legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia's leading men, including Thomas Jefferson and St. Geor...

This article examines the effect of departmentalism on presidential compliance with constitutiona... more This article examines the effect of departmentalism on presidential compliance with constitutional law. Most commentators agree that departmentalism weakens the influence of courts in the determination of constitutional meaning and the control of non-judicial actors. The article takes a different view. It defines “moderate departmentalism” as the authority of the President to refuse to adopt a constitutional interpretation announced by the Supreme Court. Drawing on ideas developed in the literature on “new governance” and administrative law, it then argues that moderate departmentalism increases the capacity of the federal courts to control presidential conduct

Houston Law Review, Feb 22, 2016

Social Science Research Network, Jan 13, 2021

SSRN Electronic Journal, 2022

Environmentalism and economics have a complicated relationship. Sound environmental policy is oft... more Environmentalism and economics have a complicated relationship. Sound environmental policy is often perceived to be at odds with welfare-maximizing policy; restrictions on the development and use of land are probably the chief example of this conflict. At the same time, however, environmentalists often employ the analytical tools of welfare economics-as well as its scientific cachet-to provide support for their policies. Thus there is both a resistance to and reliance on welfare economics. In Price, Principle, and the Environment,' philosopher Mark Sagoff argues that, with a few exceptions, environmentalism should cease its reliance on economic analysis. To understand why Sagoff believes this, it is helpful to begin by examining some of the intellectual history he draws upon; for like all troubled couples, environmentalism and economics have a long past. In the late sixties and early seventies, neoclassical economists such as William Nordhaus and James Tobin began to argue that the scarcity of natural resources did not impose a limit on the production of goods and services. Instead their models suggested that technological innovation would always compensate for the effect of dwindling natural resources. 2 A simple explanation accounted for these results. As natural resource inputs to

William and Mary Bill of Rights Journal, 2016

This Article argues that procedural due process can be understood as a choice-of-law doctrine. Ma... more This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in t...

How do we change the Federal Constitution? Article V tells us that we can amend the Constitution ... more How do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland. What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg- islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actu- ally use them to change the Federal Constitution? Are we to conclude that most of the amendments are in some way defective? To show why Article V might have permitted the use of legislatures to amend the Constitution, this Article examines a series of polit...

This is a study of the Case of Josiah Philips, a militant loyalist who led a terror campaign at t... more This is a study of the Case of Josiah Philips, a militant loyalist who led a terror campaign at the opening of the Revolutionary War and was attainted by an act of the Virginia General Assembly in 1778. In his edition of Blackstone’s Commentaries, St. George Tucker asserted that judges on Virginia’s General Court had refused to enforce the attainder. It has long been thought that Tucker’s claim was false, since Philips was captured before the end of the grace period in the act of attainder. Here I return to the Philips sources from a new perspective, reinvigorate Tucker’s claims, and show how the case continues to be of interest. As I read it, the case is centrally concerned with a constitutional dispute over the role of the general assembly during wartime. In particular, Philips's treatment by the Virginia General Assembly exposed a disagreement about the proper scope of residual judicial powers in a republican assembly. Thomas Jefferson saw the assembly as the proper instituti...

SSRN Electronic Journal, 2021

This essay is an invited response to “Advisory Opinions and the Problem of Legal Authority,” Vand... more This essay is an invited response to “Advisory Opinions and the Problem of Legal Authority,” Vanderbilt Law Review, vol. 74, by Christian R. Burset. The essay explores the relationship between English legal education in the 18th century and the crisis affecting the common law. English legal education lacked a formal institutional basis after the decline of the Inns of Court, and this affected the acculturation of English lawyers and their maintenance of a shared sensibility or "common erudition." The evidence suggests that American legal education faced similar challenges. As a result, lawyers and legal writers embraced a view of the law that emphasized elements that narrowed the discretion of judges: precedent and a doctrine of stare decisis; the law as a system; lengthy, written judicial opinions; and legal decision-making as deductive. The development of a doctrine of justiciability and the decline of advisory opinions was related to these developments.

Law and History Review, 2019

The politics of war severely divided the Virginia Southside during the American Revolution. Labor... more The politics of war severely divided the Virginia Southside during the American Revolution. Laborers, ship pilots and other landless men and women bitterly resented the efforts of the patriot gentry to stop trade with Great Britain and to establish a military force. Planters feared that the presence of the British Navy would encourage slaves to flee or attack their masters. What role did law play in the patriot response to these conditions? This essay uses the case of Josiah Philips, who led a banditti residing in the Great Dismal Swamp, to show how law intersected with class and race in patriot thinking. The gentry's view of the landless as dependent and lacking in self-control and its view of black slaves as posing a constant threat of violence supported the application of special legal regimes suited to these dangers. In particular, Philips was “attainted” by the General Assembly, a summary legislative legal proceeding traditionally employed against offenders who threatened g...

SSRN Electronic Journal, 2017

SSRN Electronic Journal, 2015

This essay explores a constitutional account of the elevation of the judiciary in American states... more This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or the ruler, but the law of the community. This view may explain why the new American republican regimes elevated their judiciaries, insulating them from political control, while at the same time reforming judicial procedures and trimming traditional jurisdictions to exclude matters that invited judges to exercise an arbitrary discretion.

SSRN Electronic Journal, 2014

In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish p... more In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish parents for removing their children from school in violation of state mandatory attendance laws. In reaching its decision, the Court argued that protecting the Amish parents' decisions fit into a longstanding American tradition of giving parents control over the upbringing of their children. Yet the Supreme Court mischaracterized the history of parental rights and state interests in education. Contemporary historical research shows that parents have long ceded a large measure of control to the state in the education of their children. Still, very little has been written about this scholarship in legal journals. This article attempts to remedy this deficiency. It isolates and explores three key periods in the development of stateadministered public schools, paying special attention to early public funding of religious schools, the Protestant character of the common schools, and Catholic resistance to the use of the King James Bible in common schools. In so doing, this article argues for a "republican" interpretation of early educational practices. Drawing on that interpretation, the article joins a debate between Noah Feldman, Martha Nussbaum, and others about the nature of American religious liberties, and argues that their views are not able to fully acknowledge the history of Protestant evangelizing in public schools.

Seattle University Law Review, 2010

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’... more Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article undertakes a detailed examination of the notions of narrowness and shallowness, the central components of judicial minimalism. It offers a unique interpretation of both ideas, and shows, among other things, how a decision can be both narrow and deep - an assertion repeatedly made by Sunstein but never expla...

This Article challenges the view of “prerogative” as a discretionary authority to act outside the... more This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as Locke defined it. Instead, the early American understanding of “prerogative” appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis, Americans based their claims to enjoy ...