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Matthew Steilen
Associate Professor
A Minnesota native, Associate Professor Matthew Steilen earned
his bachelor’s degree in philosophy, magna cum laude, at that
state’s Carleton College, then went on to a doctoral program in
philosophy at Northwestern University. Following law school at
Stanford and a federal appellate clerkship, he worked at the
San Francisco office of Covington & Burling before joining UB
Law School. At UB, Steilen is also affiliated with the Department
of Philosophy.
Steilen focuses his scholarly work on issues of constitutional law
and democracy, incorporating the methodologies and disciplines
of philosophy into his approach. His scholarly publications
include a book review, “Reason, the Common Law, and the
Living Constitution,” and articles in the Seattle Law Review,
BYU Education and Law Journal.
• • •
Steilen writes and teaches in the areas of constitutional law and
civil procedure.
My research
focuses on
“common law”
methods of
judicial law-making, with a
particular focus on
constitutional law. Broadly
speaking, my core theoretical
interest is to explore how
common-law judges innovate
legal principles while
answering to independent,
“objective”standards in fairly
resolving the dispute before
them. My work is largely
normative, but it is also
informed by an attention to
historical scholarship.
For example, in a piece
forthcoming in Legal Theory
entitled,“Reason, the
Common Law, and the Living
Constitution,”I review David
Strauss’s recent book, The
Living Constitution, and argue
that the leading cases of
Schenck, Masses, Gitlow, and
Whitney were significant in
light of their highly theoretical
discussions of the nature of
political speech. The “clear
and present danger”test,
which emerged from these
cases, was formed by
competing theories of the role
of speech in a democracy, and
was designed to be responsive
to the concerns of free-speech
opponents, who argued that
the inflammatory speech of
the radicals of the day would
generate political instability.
My emphasis on theory
contrasts with the dominant
“Burkean”account of
common law
constitutionalism, which
Strauss and others have
adopted. According to that
view, the common law is
characterized as a theoretically
modest, empirically confirmed
body of judicial precedents. I
believe this account fails to
describe the development of
First Amendment law in
Schenck and the cases that
followed.
A second forthcoming
piece,“The Democratic
Common Law,”builds on
these themes in an effort to
show how judge-made law fits
naturally within a democracy
like our own. According to the
view I defend there, judgemade
law enjoys the same kind
of legitimacy as legislation—
call it “democratic
legitimacy”—when it emerges
out of a process in which
individuals exchange reasons
about what course of collective
action is appropriate. In my
view, common-law
adjudication is such a process.
To show how it is, I examine
both the so-called “classical”
account of the common law
associated with English jurists
Matthew Hale and Edward
Coke, as well as modern work
on the common law by Fred
Schauer, Edward Levi, and
Martin Golding.
Together, these articles
advance a broader goal in my
scholarship: to describe an
active and innovative role for
the judiciary within our
democratic political system. In
“Minimalism and Deliberative
Democracy,”33 Seattle U.L.
Rev. 391 (2010), and elsewhere,
I have tried to provide a
normative framework for
justifying and directing our
ongoing practice of judicial
law-making.