Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Monday, March 31, 2003
Google Problem: If Google has been sending you to the March Archive of Legal Theory Blog, you can get to the latest posts, by clicking here.
McCain-Feingold Decision Hold Up The decision on the constitutionality of the BCRA is very late. Why? Rick Hasen reports on a story filed by Nina Totenberg, filled with scandal and intrigue. Read Rick's two posts in the following order:
Bertram on the Difference Principle Chris Bertram of the valuable Junius writes:
G.A. Cohen's Critique of the Difference Principle I must admit to being almost utterly mystified by the traction that Gerry Cohen's critique of the difference principle has developed. Simplifying Cohen's argument for the purpose of bloggin, the core idea is that incentives should not be necessary for citizens who have internalized the difference principle. They ought simply to be motivated by the difference principle to work so as to make the least-advantages as well off as they can be. (Among the simplifications is that I am using the phrase "well off" and not discussing Rawls's idea of the "primary goods.") But this argument both misunderstands the point of justice as fairness and would lead to absurd consequences.
Cohen Misses the Fundamental Idea of Reciprocity Cohen's argument misses a fundamental premise of the Rawls's theory. The point of justice as fairness is not to benefit one group--the least advantaged. Rather, justice as fairness requires reciprocity--all must benefit. Cohen's argument would lead to a basic structure that (with respect to the primary goods) is aimed at the benefit of the least-advantaged, with no reciprocal advantage for other groups. This same point can be made another way. If Cohen were right, everyone who was not in the least advantaged group would be obligated to adopt the welfare (loosely speaking) of the least advantaged as their own goal in life. So long as there was a least advantaged group, no one outside that group would be entitled to their own comprehensive conception of the good. No one could pursue art, music, religion, or building a better Internet as a life plan, unless their action would produce the greatest benefit for the least well off as compared to any alternative course of action. From a Rawlsian perspective, Cohen's critique self destructs.
Workshops Today Here is today's roundup:
Sunday, March 30, 2003
Milestones Department This evening the number of visits for Legal Theory Blog went over 10,000 for the month of March. Although a smallish number by the standards of Instapundit or the Volokh Conspiracy, it seems quite respectable for a weblog that focuses on scholarship and ideas related to legal theory.
Is Yoda a Legal Theorist? Check out Political Theory Blog for startling evidence that the answer to this question is yes. And while you are at it, take a look at Micah's post on judicial junkets.
Wittgensteinian Politics I am usually somewhat skeptical about appropriations of Wittgenstein--especially in the post-modern vein. Along those lines and courtesy of the really super PoliticalTheory.info, here is a paper by Melinda Kovács (Rutgers, Political Science) entitled Play nice: Towards a Wittgensteinian politics. Kovács essay detours hither and yon, ending:
Zittrain on Internet Points of Control Jonathan Zittrain's paper entitled Internet Points of Control somehow slipped past me a week or two ago. I heard Jonathan do an earlier version of this at Boston College in the Fall--must reading for cyberprofs and others interested in legal regulation of the Internet. Here is a taste:
Saturday, March 29, 2003
Back from Brazil I've returned from the ICANN meeting in Brazil. Here is a guide to my posts on the Internet Corporation for Assigned Names and Numbers:
Blogging from Brazil 2--should new top level domains be taxonomized?
Blogging from Brazil 3--ICANN is the only place with more arguments about procedure than a law school faculty meeting!
Blogging from Brazil 4--Coase on the FCC and the ICANN Policy Dialog.
Blogging from Brazil 5--Stuart Lynn proposed a "beauty contest" for new top level domains.
Blogging from Brazil 6--Is ICANN on a slippery slope to recapitulating the FCC?
Blogging from Brazil 7--The tone of debate shifts toward market-oriented approaches & the future of ICANN.
A Law Student Blog with a Difference Whatever your position on the war, you will be interested in Intel Dump. The blog of UCLA law student and former Army Officer. Read his informative post on Urban Warfare.
More Hasen on Judicial Nominations While I was Flying Up From Rio, Rick Hasen has been more good stuff on judicial nominations. Here is his post on filibustering in the context of the war. And here is a post on the nomination and possible filibuster of Priscilla Owen. Rick may need to change the name of his Blog from Election Law to Judicial Nominations.
New on SSRN Some new papers went up late yesterday. Here are the highlights:
Friday, March 28, 2003
Downward Spirals Department My colleague Rick Hasen (who thinks that we are on a roller coaster & not a downward spiral) posts re the possibility that Judge Priscilla Owen, nominated for a vacancy on the United States Court of Appeals for the Fifth Circuit, may be filibustered.
New Papers on SSRN Here are the new papers on SSRN:
My colleague Jan Costello (Loyola Marymount) offers Why Have Hearings for Kids If You're Not Going To Listen?: A Therapeutic Jurisprudence Approach to Mental Disability Proceedings for Minors, forthcoming in the University of Cincinnati Law Review.
Barbara Fried (Stanford) has given us Ex Ante/Ex Post forthcoming in The Journal of Contemporary Legal Issues.
Habermas at the Royal Institute of Philosophy Jurgen Habermas--surely one of the greatest philosophers of the era--speaks today at the Royal Institute of Philosophy. His lecture is entitled: On Tolerance, Democracy and Cultural Rights. The venue is Beveridge Hall, Senate House, Malet Street, WC1, London. I tried to book my trip to the ICANN meetings in Brazil through London, but I just couldn't make it work!
Thursday, March 27, 2003
Balkin on Scalia on Originalism Jack Balkin's blog Balkinization is one of the best--although I frequently find myself disagreeing with Jack's articulate and trenchant posts. He has a doosy on originalism up today. Here is a snippit:
--Originalism May Be Internally Constrained for Principled Reasons. Originalism is only a module within some larger theory of the constitution and interpretation. Other modules in the theory may trump originalism in particular situations. Actually, I think that it is at this level that consistency is quite difficult to achieve. For example, some rule-of-law originalists believe stare decisis trumps originalism, and that originalist results should only be achieved via incremental common law changes. (We move from an unoriginaist interpretation to an originalist one by making marginal adjustments where there are gaps, contractictions, or ambiguities in the precedents.)
--Originalist Solutions May Be Unavailable Because of Case Dynamics. Because our system is adversaril, parties shape records, lower court decisions, and the argument set before the court. This shaping process may render the originalist solution outside the choice set before the Court.
Lawrence v. Texas Erik Jaffe (of the Ancient and Respected Order of Volokh Bloggers) attended the oral argument in Lawrence v. Texas (the challenge to the Texas sodomy laws) yesterday. Here is his very nice post. And there is also a post from the ever-helpful SCOTUSBLOG. And here is the L.A. Times story.
Blogging from Brazil 7 Today was the last day of the Rio De Janeiro meeting of the Internet Corporation for Assigned Names and Numbers (ICANN). Here are a few last thoughts and impressions about the meeting:
Topsy Turvey Economics On the bus from the public forum to dinner on Wednesday night, I had one of those big fat a ha moments. Here is what it was about. Stuart Lynn (who steps down as President of ICANN today) described his sTLD beauty-contest plan as an RFP process. When thinking about the root, here is how Lynn sees things. He sees TLD name service as something that ICANN is responsible for providing. Therefore, he thinks of the TLD operators (e.g. Verisign, the ccTLD operators, etc.) as vendors--from whom ICANN buys a product (name service at the TLD level). In other words, ICANN is the customer! But wait a second! That is exactly backwards. ICANN holds a valuable resource--the root. ICANN sells root service to TLD operators, who then sell TLD name service (via the registrars as intermediaries) to you and me. ICANN is in the business of allocating a resource, and not buying a service. No wonder ICANN is having trouble developing a rational resource allocation policy! How can you develop a system for rationing the scarce root resource, if you don't even know you have a scarce resource to allocate!
A Change in Tone The worst thing to do with a resource is waste it. That has been ICANN's basic policy toward the root--waste the resource by maintaining a virtually static root. In November 2000, ICANN held a beauty contest that expanded the root just a little bit. In Rio, ICANN set in motion yet another beauty contest that would expand the root an even smaller bit. But there was also a change in tone. Vint Cert articulated an important principle regarding the root. He suggested that the fundamental principle that should govern expansion of the root is that new TLDs should be allowed in the root as long as they will do no harm. Let me repeat that. Cerf's Principle: A new TLD should be allowed in the root so long as it does no harm. But wait, there's more. When the meeting started, the notion of a market-driven allocation process looked like it was in big trouble. But by the end of the public forum, the factions within ICANN that are holding on to the idea of a static root were on the defensive. (Their slogan is: Don't push the problems of the second level to the top. I would put it: Don't allow the economic miracle of millions of SLDs pollute the last part of the DNS to be managed by top-down engineering, the pure and holy root.) Even those who advocate wasting the root were beginning to talk about the inevitabiity of market approaches. Even Stuart Lynn was talking about demand-driven approaches! Of course this is ICANN, never underestimate the possibilities for strategic blocking in a consensus-driven, bottom-up, entrenched-stakeholder organization. But the consensus at the dinner after the public forum was that the tone of the debate had changed. The defenders of a static root are only going through the motions. Beauty contests are under attack. Market-driven approaches are on the intellectual offensive.
The Road Ahead What challenges will ICANN face in Montreal, Carthage, and beyond? Here are some of the issues that are likely to emerge:
--Root Expansion. Sooner or later ICANN must face the BIG policy question of root expansion. This would be a suitable topic for a task force that includes members from outside ICANN's internal structure, e.g. an economist. (On his way out of the airport, Vint Cerf collared me and told me that he needed to have a conversation about economists with me. OK, Vint!
--The Digital Divide. I am convinced that ICANN should stay out of the general Digital Divide issue, but ICANN is inevitably involved in the particular DD issues that are inevitably raised by the ICANN's resource allocation responsibilities for the name and number space. All of the gTLDs are first world focused. IDN (Internationalized Domain Names) creates the possibility of new gTLDs using IDN. One of ICANN's highest priorities should be IDN gTLDs for LDCs. How's that for acromania! In plain English, ICANN should faciliate the creation of new .coms, .orgs, etc. that use characters sets other than the very restricted set--Roman alphabet, Arabic numeral plus hypen and underscore--that is currently permitted. This is especially true for LDCs (Less Developed Countries). If someone doesn't jumpstart IDN gTLDs for LDCs, they will be a long time coming. The IDN standard has been formulated, so ICANN needs to move on this issue.
Thursday is Workshop Day Here is the roundup:
At George Mason, Michele Boardman (George Mason and the Volokh Order of Noble and Prolific Bloggers) presents Self-Regulation of Critical Infrastructure through Insurance: Can the Turtle Play Sentry to the Hare?.
At the University of Michigan's Olin Series, Scott Masten (Michigan) presents Contracting in the Absence of Specific Investments and Moral Hazard: Understanding Carrier-Driver Relations in US Trucking.
At Yale's Legal Theory Workshop series, Arthur Applepaum (Harvard, Public Policy) presents Legitimacy in a Bastard Kingdom. As I began to read his paper, I had one of those great big head-spinning a-ha! moments. After you read the next sentence, you may say to yourself, "I didn't know Solum was so dense," but here goes. Applebaum's paper opened my eyes to the obvious point that normative political legitimacy is closely related to the legitimacy of heirs--hence his title. I have been been puzzeled by the concept of normative legitimacy for years. Here is a taste of the fine work in Applebaum's paper:
The other distinction is between the word legitimacy, the concept or idea of legitimacy, and particular conceptions of legitimacy, the content of the concept. “Fine word, legitimacy!” Edmund says with irony. It is a fine word, but we need to trace its changing senses over time to distinguish the word from the idea or ideas it expresses. The same word, of course, can come to refer to different concepts—a “civil right” is not a polite uppercut to the jaw—and different words—“authority” is the closest cousin here—can refer to the same concept. I have, a moment ago, offered a rough account of the concept by saying that legitimacy is the moral right to rule, but if we understand conceptual analysis as the exercise of marking off apt boundaries for fruitful argument so that we neither talk past each other nor beg the question, we may discover that this rough draft needs some editing. Finally, the concept or idea of legitimacy can be filled out in different ways. We can both agree that we are talking about the same idea, legitimacy, but disagree about its content: criteria for how you get legitimacy and what it gets you.
At the University of San Diego's Law, Economics, and Politics Workshop series, Joy Freeman (UCLA & Bren School of Management, UC Santa Barbara) and J.R. DeShazo (UCLA, Public Policy) present The Congressional Competition to Control Delegated Power. Here is a taste from the abstract:
Wednesday, March 26, 2003
Blogging From Brazil 6 ICANN is a truly interesting organization. Here we are in Brazil making decisions regarding the future of the global internet, and just anyone (me, in this case) can just walk in off the street and make a speech to the Board of Directors at the Public Forum. The topic was the expansion of the root space. In particular, lame-duck ICANN President Stuart Lynn make a very thoughtful presentation of his proposal for a limited round that would allow only sponsored Top Level Domains into the root. Lynn's proposal is for a complex, criteria driven, beauty-contest model. Only nonprofit, global, membership organizations would be eligible. Some of the criteria for evaluation were vague: does the proposal add value? Others are intrustive: does the sponsoring organization have adequate procedures for internal communciation and input--surely none of ICANN's business.
The Better Should Not Defeat The Good Earlier in the meeting, the Chair of the Board, internet pioneer Vint Cert, made a plea for incremental improvement. Don't let incremental improvements be defeated on the ground that something even better is on the horizon. Yes, of course. In many contexts, incrementalism is just common sense. But in other cases an incremental improvement may lead to unintended consequences.
Unintended Consequences of an sTLD Beauty Contest So what might the unintented consequences of an sTLD beauty contest be? Here are some possibilities?:: Cost-Based Rationing to the Non-Profit Sector--Lynn was aiming at objectivity. To that end, he proposes multiple teams of evaluators who will rate applications on the basis of an elaborate point-system. Moreover, some of the criteria encourage expensive applications. For example, community support is a criterion, but demonstrating deep and wide community support can be very expensive. The sTLD space is intended for nonprofit organizations, and it therefore seems quite odd to allocate the root space allocated for non-profits by imposing substantial application expenses. Wouldn't it make sense, instead, to create a very lean, low-cost mechanism for entry into the sTLD space? How about automatic entry into the root for international non-profit membership organizations that can demonstrate that they have or have contracted for the necessary back end technical competence?
:: A Slippery Slope--But a more serious unintended consequence of sTLD beauty contests is the danger that by creating an elaborate beauty contest mechanism, ICANN is taking a second step towards institutionalization of the beauty-contest model. Think about the following scenario:
+Step Two: The Summer 2003 Montreal round--a formalized sTLD beauty contest with mutliple-criteria, a point system, and multiple independent evaluation teams.
+Step Three: A 2004 round--the formalized beauty contest mechanism is extended from sTLDs (nonprofit, membership organizations) to other categories of gTLDs (perhaps nonmembership nonprofits or even commercial gTLDs).
Junius on Recent Political Philosophy Texts Chris Bertram has a really nice round-up of recent political philosophy texts. One of the texts is by the late Jean Hampton, who in her first year at UCLA was my first teacher in legal and political philosophy. I still mourn her tragic death at a very early age. I was therefore touched and pleased by Chris's praise of the book. Check out Chris's fine post. Post Scirpt Chris adds a bit more here.
New on SSRN Three very interesting new papers have recently been posted on SSRN:
Robert Rabin (Stanford) posts The Quest for Fairness in Compensating Victims of September 11, forthcoming in the Cleveland State Law Review.
Thomas Grey (Stanford) offers Judicial Review and Legal Pragmatism. Here is a taste from the abstract:
Comments on the ICANN sTLD Beauty Contest Proposal Have Been Posted Karl Manheim and I have posted a comprehensive set of comments on the new ICANN proposal to establish beauty-contest process for the evaluation of new sponsored Top Level Domains. Here are the relevant links:
--Criteria to Be Used in the Selection of New Sponsored TLDs. (The proposal posted on the ICANN website.)
--gTLD-auctions.net (a collection of news and links on the issue.)
--New: Comments on the sTLD beauty contest proposal have been posted on ICANN Watch. The link to specific post is here.
Blogging from Brazil 5 Those who have been following my Blogging from Brazil posts know that one of the issues that I have been following is root expansion. Top level domains (TLDs), such as .com, .org, and so forth are controlled by ICANN. In November of 2002, ICANN decided to add several new TLDs, including three sponsored by non-profits (.aero, .coop, and .museum). My colleague Karl Manheim and I have posted a policy paper to SSRN entitled The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy and we have established a website that collects news and resources at gTLD-auctions.net. ICANN's complex internal machinery has been munching on this issue for some time, and a variety of ideas are floating around the ICANN idea space.
New ICANN "Beauty Contest" Proposal Posted Yesterday Yesterday, the ICANN staff posted a new document on ICANN's website. The document is entitled Criteria to Be Used in the Selection of New Sponsored TLDs (click on the link). The core idea of the proposal is to create a limited number of new sponsored Top Level Domains (sTLDs). Only non-profit well-resourced membership organizations would be eligible to established sTLDs. The proposal suggests a number of highly subjective criteria by which proposals would be evaluated, and a complex out-sourced beauty-contest process for numerical ranking of the proposals. The new ICANN document suggests that this proposal could serve as a template for future root expansion!
The Worst of All Possible Worlds The sTLD beauty contest proposal makes sense as a short-run solution to a short-run problem. The November 2000 round was, in many respects a process disaster. On the plus side, the root name space was expanded. But on the minus side, ICANN's Board was forced to engage in an ad hoc beauty constest procedure, with no objective criteria on which to base its decision. Quite naturally, disappointed applicants were unsatisfied with the process. ICANN put itself in the position of being open to charges of arbitrary, unfair, and illegitimate action. Why not let in three more gTLDs sponsored by non-profit, membership organizations on the model of .aero, .coop, and .museum? The problem is that ICANN could not just let three more in. Some open process needed to be established. The sTLD beauty contest proposal is intended to provide a more rational beauty contest, and to get the ICANN Board out of the role of judging. Bravo! But in the long run, this is absolutely the worst decision ICANN could possibly make. The problem is beauty contests never work. We have known this since Ronald Coase's devastating critique of the FCC beauty contest approach. No matter how hard the FCC tried, beauty contests were arbitray and unfair.
The Fundamental Problem The fundamental problem with the beauty contest approach is that it is just plain impossible for a board to do even a decent job of determining which innovative uses of a resource will succeed and which will fail. Experience teaches this lesson to those who judge resource-allocation beauty contests. So the judges do what they can do. The judges can't evaluate the worth of the proposals, so they focus on the characteristics of the contestants! And this is exactly what the new ICANN sTLD beauty contest proposal does. There are elaborate criteria regarding the qualifications of the applicants and vague, mushy criteria for the criteria regarding the merits of the actual new sTLD.
Down the Slippery Slope If the ICANN board approves the sTLD beauty contest proposal, the results are predictable. A formalized, rationalized, bureaucratized beauty-contest mechanism will have been established. In the beginning, it will be applied to one round of sTLDs and it will be an improvement over the ad hoc November 2000 round. The ICANN Board will then be on the slippery slope to a beauty-contest model. At the bottom of the slippery slope is the worst mechanism devised by humankind for the allocation of a scarce resource! More later!
Downward Spirals Department Rick Hasen has another articulate and intelligent post. He argues that we are not in the midst of a downward spiral, but rather are on a "roller coaster" of politicization. More on this later.
Tuesday, March 25, 2003
Political Theory Blog I've added a link to Micah Schwartzman's Political Theory Blog to the sidebar. Once again, thanks to Chris Bertram at the wonderful Junius for prompting me to do this.
Blogging from Brazil 4 Lee McKnight (Syracuse) organized a small group on Monday night to discuss ideas for expanding the gTLD name space. Before I report on the conversations, some background.
Back to Monday Night So what happened Monday night? Of course, ICANN meetings involve stakeholders and wanna-be stakeholders. Nokia was at the meeting to explain their .mobile TLD concept--essentially a plan for a new top level domain that would be used by the telcos and mobile phone manufacturers to create domain names for mobile phones. McKnight presented the Mueller/McKnight auction plan. Then the questions started flying, and they were really, truly amazing--in a good and bad way. Here is a sample of the ideas that were bandied about:
Short Run Focus The participants in the ICANN process, quite naturally, have a very short-run focus. They are (and should be) interested in making money. So the parties that are the most interested in expansion of the root (i.e., in having new TLDs) are those who have applied to ICANN in the past and not yet been granted their string--.mobile and .web were represented Monday night. So the stakeholders and wanna-be stakeholders want ICANN to approve their new gTLDs right now or as soon as possible. They are in favor of gTLD auctions, if it will speed up their getting their gTLD and opposed to auctions if auctions will slow down their getting their gTLD. Of course, many existing stakeholders have an interest in preventing expansion of the root. Verisign (the operator of the .com registry), in particular, may have an interest in blocking new unrestricted gTLDs that would compete with .com. The interaction between these groups makes it very difficult to get bottom-up consensus on an auction proposal.
What is Value Another question that is frequently raised about gTLD auctgions is: "Will the gTLDs that win the auctions have value?" Or will such gTLDs "add value?" Huh? Of course, it is possible that firms will bid for value-less gTLDs, but the whole point of a market is to insure that resources are put to their most valuable use. The gTLDs that are established as a result of an auction are exactly the gTLDs that the market tells us are most likely to add value. The "value added" question seems, at bottom, to be based on the assumption that someone (the questioner, ICANN's board) can do a better job of estimating value than the market. Sometimes this is the ending point of the conversation, but some interlocutors seem to have another idea in mind. They seem to believe in some concept of intrinsic value, i.e. value that cannot be measured by prices. Well maybe. But here is the problem. No one agrees on what constitutes intrinsic value. I suspect that in the context of new gTLDs, the idea of intrinsic value sometimes boils down to "value from the point of view of a network engineer." If so, then: (1) the market can account for this kind of value, because it affects costs and benefits, and (2) the Internet is for end users, not for network engineers.
New on SSRN Several interesting papers have gone up on SSRN recently:
Richard Pildes (NYU) uploads The Inherent Authoritarianism in Democratic Regimes. Here is a taste from the abstract:
Victor Romero (Pennsylvania State) has made available Decoupling 'Terrorist' from 'Immigrant': An Enhanced Role for the Federal Courts Post 9/11 and Critical Race Theory in Three Acts: Racial Profiling, Affirmative Action, and the Diversity Visa Lottery, forthcoming in the Albany Law Review
Emily Buss Doss (Chicago) uploads two pieces: The Speech Enhancing Effect of Internet Regulation & Children's Associational Rights? Why Less Is More.
Adam Pritchard (Michigan) has shared Should Congress Repeal Securities Class Action Reform?.
Monday, March 24, 2003
The Semantic Web Courtesy of EDdventure, this regarding Tim Berners-Lee at the PC Forum yesterday:
Another Blogger from Rio Check out Ross Wm. Rader's byte.org.
Klimchuk on the Autonomy of Corrective Justice Dennis Klimchuk (Western Ontario) has a nice piece coming out in the Oxford Journal of Legal Studies for March. Here is the abstract:
New Paper on TLD Expansion One of the most important Internet governance questions concerns the management of the Top Level Domain (TLD) space. Top Level Domains like .com, .edu, and .org are a scarce resource in the economic sense, and the Internet Corporation for Assigned Names and Numbers (ICANN) is charged with the task of resource allocation. So far, ICANN policy has resulted in severe shortages in the TLD space. Firms want to create new TLDs, but ICANN has been slow to respond to the demand. Given Ronald Coase's devastating critique of the Federal Communicatons Commission's "beauty contest" model of resource allocation, one might think that the one approach to TLD expansion that ICANN would have managed to avoid would be ad hoc hearings, in which ICANN Board Members attempt to pick the best TLD's based on their own estimation of the proposals value, but that is exactly what ICANN has done so far. Recently the Business Constituency (a subgroup within ICANN's byzantine structure) has suggested what it calls "differentiated expansion," essential a plan to "taxonomize" top level domains. New domains would be allowed only if they are limited in scope and sponsored by a nonprofit organization. No new unrestricted top level domains would be allowed. You can get the Business Constituencies Position Paper here.. My colleague, Karl Manheim, and I have written an extensive analysis and critique of the BC's position. You can download The Inefficiencies of Differentiated Expansion by clicking on the title. Post Script New: We have another, longer, paper that argues that case for an auction-based approach to gTLDs: The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy. Click on the title to go the SSRN download page.
Blogging from Brazil 3 I've just ducked out of the traditional dog-and-pony show, with the ICANN Board answering questions from the Business, Intellectual Property, and ISP constituencies. Vint Cert drew a round of applause when he suggested that the time for discussion of structural reform was over and stated that he would focus on the substantive issues faced by ICANN. It is remarkable how ICANN manages to consume itself in endless debate about structure--to the almost total exclusion of the issues that face the name and number space. The result is that ICANN has been unable to make rapid progress on issues like Internationalized Domain Names, TLD expansion, and IPv6--which actually impact users of the Internet. ICANN meetings are almost the only place in the entire universe where there is more discussion of process than in a law school faculty meeting!
MacIntyre on Harrison on Sidgwick Don't miss Alasdair MacIntyre's review of Ross Harrison's Henry Sidgwick. Get it here, courtesy of the Notre Dame Philosophical Reviews.
Monday Workshops Here is today's roundup:
At the University of Cardiff, Chris Bertram (of Junius fame) presents Global Justice and Democracy. Chris argues "that there's an asymmetry between what distributive justice requires in the intra- and international cases that flows from the different ways in which the capability for democratic citizenship is secured in each of these arenas."
At Vanderbilit, David Rosenberg (Yale) presents Nuisance-Value class Action Settlement Problem: Mandatory Summary Judgment.
At Georgetown Richard Primus (Michigan) workshops Equal Protection and Disparate Impact: Round Three.
At Florida State Jonathan Cohen (University of Florida) does The Culture of Legal Denial.
Sunday, March 23, 2003
Blogging from Brazil 2 It is about 2:00 a.m. in Rio de Janeiro. My colleague, Karl Manheim, and I spent the day at the meetings of the Internet Corporation for Assigned Names and Numbers here in Rio--spending most of the day working on a response to the "differentiated expansion" proposal outlined in a position paper issued by Business Constituency of the Generic Names Supporting Organization. The core idea of the position paper is that top level domains should be "taxonomized," i.e. that each new .com or .edu should have linguistic meaning. The Business Constituency paper argues, in addition, that there no new "unrestricted" top level domains should be created. Karl and I argue that this approach is both inefficient and anticompetitive. We will post our paper at gTLD-auctions.net tomorrow. In the meantime, it is time for me to grab some sleep!
Howell and Lewis on Presidential Agencies William Howell (Stanford, Political Science) and David Lewis (Princeton, Woodrow Wilson) have recently uploaded Agencies by Presidential Design, forthcoming in the Journal of Politics. Here is a taste form their abstract:
Balkin versus Buck--Update & Update to Update Jack Balkin & Stuart Buck have a very interesting debate going on Scalia's theories of constitutional interpretation and their application to affirmative action. Here are the posts:
Balkin's plea in abatement.
Balkin's Latest Rejoinder.
Here is an excerpt from Balkin's latest:
Sigler on Govier Check out Mary Sigler's fine review of Trudy Govier's Forgiveness and Revenge, get it here. Courtesy of the Notre Dame Philosophical Reviews.
Smith on Metaethics in Adjudication Dale Smith's article The Use of Meta-Ethics in Adjudication is just out in the Oxford Journal of Legal Studies. Here is an abstract:
Saturday, March 22, 2003
gTLD-Auctions.net My colleague, Karl Manheim and I have put up a website that collects information and resources relating to domain name policy in general and the expansion of the root in particular (i.e. new top level domains, such as .com, .org, etc.). Karl and I have just completed a paper titled gTLD Auctions: A Framework for Evaluating Domain Name Policy. Along similar lines, Milton Mueller and Lee McKnight of Syracuse University have posted their White Paper, The post-.COM Internet: A Five-Step Process for Top Level Domain Additions. ICANN's management of the root is a fascinating topic--it brings together issues from public choice theory, law & economics, and institutional economics--all in the context of the management of the global Internet. I will be blogging from the ICANN meeting tomorrow (Sunday) and all of next week. In the meantime, you can get the papers & additional infomration at gTLD-Auctions.net.
Catching Up Department Fred Dallmayr has a nice review of Jurgen Habermas Jürgen's Religion and Rationality: Essays on Reason, God, and Modernity. Get it here.
Downward Spirals Department Yesterday, Rick Hasen posted a thoughtful comment on the question whether the highly-partisan judicial selection process is in a downward spiral of politicization—responding to my earlier post—here.. Rick argues:
Monsters and Apparitions Rick also writes:
The Bottom Thinking about the bottom of the downward spiral has real utility. As I have argued previously, the downward spiral is the product of two factors: (1) asymmetrical perceptions—each side believes the other side is escalating, leading to further retaliatory escalation (going nuclear); (2) short-run thinking—each side is myopically focused on the next election and the next term of the Supreme Court and hence, both sides have lost sight of the long run—the enormous benefits produced by the rule of law. The point of my parade of horribles is not that we are at the bottom of the spiral today. Thank goodness, we are not even close. The point of thinking about the bottom is to remind ourselves that we do not want to go there. Both left and right share a long-run interest in maintaining the rule of law. Rick’s post suggests one way to de-escalate—tone down the rhetoric—on both sides. I’ve suggested another technology of de-escalation—look to the long run. There initial steps can lead to others. Republicans should withdraw the threat of “going nuclear.” Democrats should not blue slip and filibuster systematically. Both left and right can and should realize that de-escalation is in their own long-run self interest.
My Agenda Rick understands that I have a "radical" agenda. My hope is that the current downward spiral can serve as a wake-up call, a crucial perception-altering event. Further descent on the downward spiral is not inevitable. A depoliticized, neoformalist judiciary supported by a cooperative judicial-selection process has, in the past, been a stable cooperative equilibrium. Neoformalism is the norm in most advanced judicial systems outside of the United States, but there is no reason to believe that party politics in the United States are so different from those elsewhere that we are doomed to judicial politicization. The rule of law is not pie in the sky; it is a realistic option, inside the feasible choice set. A downward spiral can become an upward spiral. Both parties can come to realize that it is in their long-run self-interest to appoint virtuous judges. The cardinal judicial virtue is the virtue of justice—the disposition to decide in accord with the law and not on the basis of politics.
Hopes and Fears My hope is that we are close to a turning point—that when the talk turns to going nuclear, both sides may realize it is time to call off the war. My fear is that the long-run costs of politicization are not yet sufficiently vivid to transform the short-run orientation into a long-run orientation—that both sides must deploy their nuclear options before either side will “get it.”
Moves Toward the Final Death Spiral What if my fears are warranted? How might escalation continue? Rick has explored several possibilities, including the use of recess appointments to the Supreme Court and suspension of the cloture rules for judicial confirmations. Democrats would surely attempt to retaliate, and if they lack the means to retaliate now, they will bide their time and act when they regain control of the Presidency or the Senate. On the bench, intensely partisan political judges may come to believe that the blatanly political decision making is simply an ordinary and acceptable tactic in the struggle for political power. I see no reason to believe that the downward spiral will terminate any point short of what Rick has called "mutually assured destruction."
Conference on Kant's Philosophy of Value At the University of Hertfordshire Centre for Normativity and Narrative, there is a conference on Kant's Philosophy of Value today. Here are the speakers & topics:
Blogging from Brazil 1 For the next several days, I will be blogging from the meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Brazil. These meetings are fascinating, and there are enormously important issues in the air. Here is a preview of some of the topics that I will be covering:
Expansion of the Root--Dotcom, .org, .edu, etc. are top level domains. The supply of such TLDs has been artificial constrained. My colleague Karl Manheim and I have just completed a paper comparing ICANN's management of the domain name system with FCC regulation of the broadcast spectrum and the telephone numbering system. Our paper argues that new top level domains should be added to the root by an auction mechansim. More on this soon.
Internet Governance--ICANN is a strange beast. It is much like a regulatory agency, but it is a private-nonprofit corporation organized under California law. ICANN's governance procedures are byzantine and highly controversial. The most controversial event recently was ICANN's decision to hold global elections for seats on the ICANN board, followed by the decision to replace elections with a very complicated system. Again, more on this from the road!
Friday, March 21, 2003
Broken Windows The University of Chicago Chronical has a very nice short piece on Bernard Harcourt's Illusion of Order: The False Promise of Broken Windows Policing. Here is a taste:
Downward Spirals Department I'm on the Road to Rio with my colleague Karl Manheim, but I have just enough time during a layover in Miami to alert you to Rick Hasen's excellent post in our ongoing debate re the politicization of the judiciary. Surf here. Rick is relentless! I'll compose a reply in the air and post tomorrow. In the meantime, read Rick's eloquent, intelligent, and persuasive post.
24 Hour Hiatus There will be only infrequent posts to this blog for the next 24 hours, as I travel with my colleague Karl Manheim to the meetings of the Internet Corporation for Assigned Names and Numbers in Brazil. Tomorrow, look for a post on the ICANN meeting, the topics that I will cover from Brazil, and the importance of Internet Governance to legal theory. On Sunday, look for a post on important recent scholarship on Internet governance issues.
Downward Spirals Department Is the current battle over President Bush's nominations to various federal courts part of a downward spiral of escalating politicization of the judicial selection process? I've argued that it is, but my colleague Rick Hasen believes that Democratic tactics are simply tit for tat--responses to equivalent moves by Repubicans in the last round--when Clinton was President. In particular, Rick argues that Democratic use of blue slips is paralleled by Republican use during the Clinton years. See his post here. Let me concede that blueslipping, by itself, does not establish escalation, but add a comment. Both Democrats and Republicans percieve that their own moves are tit for tat, but that the moves of the other side are escalation. In other words, we face a problem of asymmetrical perceptions. This is one of the important preconditions for a downward spiral. If each side percieves that the other sides moves are escalatory, then each side sees escalation on their own part as the rational move. Hence, the Republican discussion of "going nuclear"--see Rick's original discusson and then scroll up in his blog for further posts. If I am right about the downward spiral, the consequences can be profound. The end-point of politicization is very grim indeed--with judges openly battling for poltical agendas, ordinary tort and contract cases turning into the opportunity for the distribution of pork, and the political branches retaliating against the judiciary when there are differences in party control. We don't want to go there.
More from SSRN More new scholarship on SSRN:
Peter Schuck (Yale) uploads Groups in a Diverse, Dynamic, Competitive, and Liberal Society: Comments on Owen Fiss's 'Groups and the Equal Protection Clause'
Lucio Baccaro (International Institute for Labour Studies) offers Civil Society Meets the State: A Model of Associational Democracy.
Lucian Bebchuk (Harvard) gives us The Case for Empowering Shareholders.
Francesco Parisi (George Mason), Norbert Schulz (Bayerische Julius Maximilians Universität Würzburg), and Ben Depoorter (Yale) offer Simultaneous and Sequential Anticommons. If you are not familiar with the now-burgeoning anti-commons literature, this paper is a nice way to catch up. Here is a teeny tiny little bite, that gives you the flavor of the issue:
Maskin on Political Accountability of Judges Courtesy of the invaluable Economic Theory News, Erik Maskin (Institute for Advanced Study, Princeton) has made available his paper The Politician and the Judge: Accountability in Government, from the UCLA (economics) Theory Workshop series. Here is a taste from the abstract:
Fiss Fest! The University of Miami is putting on a conference titled, Fiss's Way: The Scholarship of Owen Fiss, today and tomorrow (March 21-22, 2003). Here is the lineup for this very exciting event:
Workshop Today At Vanderbilt's Legal Theory Workshop series, Maxwell Stearns (George Mason) presents A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine. Catchy title Max!
Thursday, March 20, 2003
Jus in Bello From the Independent today:
:: Aquinas on War.
:: Michael Walzer, Just and Unjust Wars: A Moral Argument With Historical Illustrations (paperback ed. 2000).
:: There is an entry titled Just War Theory in the Internet Encyclopedia of Philosophy
:: Another collection of links.
:: Vincent Ferraro, Principles of the Just War.
:: Alexander Moeser's paper Just War Theory in a Changing World.
:: Wendy McElroy, Libertarian Just War Theory.
:: American Center for Law and Justice Just War Theory and Iraq.
:: Interview with Robbie George (NRO).
Off Topic Department Thanks to the ever-helpful Howard Bashman at How Appealing for a link to the BBC war reporter's blog. This should satisfy even Eugene's (of the Most Serene Volokh Blog Repubic) thirst for fresh news--see his post.
Grim Chuckles Department Cruise on over to Nate Oman's A Good Oman for a very nice bit of wit.
Downward Spirals Department Rick Hasen has been blogging recently on the mysterious Washington Times story indicating that the Republicans may "go nuclear" in response to the Democratic filibuster of Miguel Estrada. Another reader sent me a link to an NRO Outline Story indicating further escalation from the Democrats:
Post Script Hasen has a new post on the history of the recess appointments clause in the context of judicial appointments.
Post Post Script Rick replies to the above, arguing that the Michigan Democrats are engaged in simple tit for tat. Well, yes, it is tit for tat. But in a standard iterative prisoners dilemma, you don't expect tit for tat to continue, on and on, for many rounds (in the real world, years) of play. Is this an escalation? I don't know, but I think it is at least unusual to use the blue-slip procedure to block all Presidential nominees from an opposition party state. But as Rick notes in his response, Jesse Helms did this same thing during the Clinton Administration! Thanks Rick.
At University College London Today Michael Freeman delivers the J. A. C. Thomas Lecture A Time to Live and a Time to Die.
Barry on Inequality and Responsibility I just finished reading Brian Barry's workshop paper (Kadish, today). The central idea in the paper is what Barry call's the principle of responsibility:
Teaching the Ethics of War Courtesy of Arts & Letters Daily, there is a marvelous post on The Chronical of Higher Education Website from tomorrow's issue. Sharon E. French (U.S. Naval Academcy) posts When Teaching the Ethics of War Is Not Academic. Christopher Eberle (who also teaches at Annapolis) was recently at the University of San Diego Institute for Law and Philosophy for a debate with Michael Moore, David Brink, and Michael Perry. At dinner after the debate, Chris talked about the experience of teaching ethics to midshipmen--fascinating. Here is an excerpt from Shannon's essay:
New on SSRN Here is today's collection of links to new and interesting papers posted on SSRN:
Ulrich Haltern (Humboldt Universität zu Berlin ) uploads Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination.
Oliver Gerstenberg (Harvard) posts Expanding the Constitution Beyond the Court: The Case of Euro-Constitutionalism.
More Hasen on Estrada Zip over to Rick Hasen's Election Law Blog for his latest on the possibility that the Republican's will go nuclear on Estrada.
Balkin versus Buck Jack Balkin & Stuart Buck have a very interesting debate going on Scalia's theories of constitutional interpretation and their application to affirmative action. Here are the posts:
Thursday is Workshop Day It is a bit difficult to focus on the day-to-day given the war, but here is today's roundup:
At George Mason, Jonathan Klick is workshopping Does Tort Reform Help States Retain Physicians and Does It Matter?
Florida State has an excellent series. Today Fernando Teson does Kant, Intervention, and Trade: A Response to my European Critics. You go Fernando, especially those French critics!
And at Boston University, Alan Macurdy presents Sovereignty in a Normative Universe: Felix Cohen and the Conflict of Laws. Alan, any chance you could put up a link?
And at the Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley) Brian Barry (Columbia, Philosophy) offers Does Responsibility Undermine Equality?