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.

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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:
    I gave my annual lecture on Rawls's (much misunderstood) difference principle last week and in preparation I read Philippe Van Parijs's rather good essay "Difference principles" in the excellent new Cambridge Companion to Rawls. Van Parijs writes that the thought that lies behind the difference principle is that the absolute size of the social cake is not independent of the way in which it is distributed and asks why this is so. Most expositions stress the role that incentives can play in eliciting more effort and developing the skills of those with more advantages, a suggestion that is the focus of a well-known critique of Rawls by G.A. Cohen. Van Parijs rather downplays the incentive arguments and suggests instead that a more important justification is that inequalites put assets in the hands of those who can use them best and take them away from those who make poor use of them: the resulting efficiency gains are such as to eventually benefit everyone and especially the least advantaged.
Here is Chris's full post--which goes off in a different direction. Sticking to the difference principle, however, . . .
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:
    At Florida State, Robert Hillman (Davis) does Organizational Choices of Professional Services Firms: An Empirical Study.
    At NYU's Faculty Workshop series, Fred Schauer (Visiting at NYU & Harvard, Kennedy School) is on the calendar.

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, here is a paper by Melinda Kovács (Rutgers, Political Science) entitled Play nice: Towards a Wittgensteinian politics. Kovács essay detours hither and yon, ending:
    The politics informed by Wittgenstein, in the domains of both theory and method, is indeed slow and messy. It is also incremental, non-revolutionary, and somewhat self-conscious or even hesitant. It is humble enough to avoid claims to knowledge of the world. It calls for action but not of the global or cosmic kind. It tells us we do not exactly have the choice of whether or not we want politics – it is a game that is already going on. So we may as well play nice.
Well maybe. But think about this. By far the most influential work in the Wittgensteinian tradition that reaches normative questions has been gone in a variety of neo-Aristotelian directions. Of course, Elizabeth Anscombe go the ball rolling in her famous essay, Modern Moral Philosophy, which was recently anthologized in Roger Crisp and Michael Slote's collection Virtue Ethics: Oxford Readings in Philosophy. This line of thought has been pursued in various ways--John McDowell's work is crucial. But for my money the big important moves were made by Philippa Foot--see especially her collection Virtues and Vices and her recent Natural Goodness. And contemporary work in this vein includes Rosalind Hursthouse's important book On Virtue Ethics. For references and more, see my Virtue Jurisprudence: A Virtue-Centered Theory of Judging. It doesn't really matter who is the true heir of Wittgenstien. It does matter whether the work lives up to the almost brutal rigor and self-critical introspection that makes Wittgenstein unique among twentieth century philosophers. Play nice? I think not!

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:
    The most worrisome outcome is one in which filtering [by ISPs of unlawful content] creeps into the system in an ad hoc way, without formal evaluation of the standards by which it is taking place or the criteria by which ISPs choose to accede to such filtering when the requests are informal, or an ability to fully evaluate the nature of the sites filtered. To have sources of Internet content simply disappear from the perspective of others—at first for some rather than all—portends enormous but subtle control over who can say what on a formerly free-for-all medium. The Internet’s brilliant methodology of data routing—a flexible set of intermediaries functioning in tandem yet with little central coordination—offers multiple opportunities for control that are only now coming into focus for regulators. Such control cannot be accepted, even if initiated for substantively good intentions, without the most exacting of processes to avoid abuse, including a comprehensive framework where sov-ereigns’ actions to block material are thoroughly documented and open to challenge. If carefully implemented and circumscribed, however, govern-ment mandated destination-based filtering stands the greatest chance of ap-proximating the legal and practical frameworks by which sovereigns cur-rently sanction illegal content apart from the Internet. Attention to distinct points of control, then, can force cyber-libertarians to dispense with proce-dural or jurisdictional concerns about regulation and instead either to rely flatly on theories of free speech and action that go beyond even the most liberal governments’ current allowances, or to invoke Internet exceptional-ism to explain why it should be indeed freer than its analog media counter-parts.
A must download for those interested in the future of IP on the Internet.

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:

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:
    Susan Klein (Texas) uploads No Time for Silence. Klein responds
      . . . to the position, taken by the Solicitor General of the U.S. Dept. of Justice in Chavez v. Martinez . . . that the police are free to disgregard Miranda. [She] suggest[s] that the privilege against self-incrimination is best viewed as a ban on certain official conduct outside of a criminal trial, not as an evidentiary rule. The Supreme Court in Kastigar v. United States, by blessing prosecutorial grants of immunity pursuant to statute, did not intend to extend this same authority to police officers in back rooms. [The paper] further argue[s] that a deliberate violation of any right invoked under Miranda should give rise to a viable civil rights claim. Scholarly attacks on Miranda are simply misdirected unhappiness with the privilege itself. Finally, [it] suggest that the tragic events of September 11, 2001, do not warrant the abandonment of the privilege in ordinary domestic criminal cases.
    Ronald Wright (Wake Forest, general) and Marc Miller (Emory) offer Honesty and Opacity in Charge Bargaining. Here is a taste from the abstract:
      Based on our study of case screening practices in New Orleans, we believe that pervasive harm stems from charge bargains due to their special lack of transparency. Charge bargains, even more than sentencing concessions, make it difficult after the fact to sort out good bargains from bad in an accurate or systematic way. We do not believe that active participation by even the best defense counsel can solve this problem.
    Leandra Lederman (George Mason) has posted The Interplay between Norms and Enforcement in Tax Compliance. Here is a bite from the abstract:
      A number of scholars have suggested that vigorous enforcement of the tax laws may be counterproductive because it may suggest that noncompliance is the norm. This article argues, in part, that enforcement and a compliance norm are not inconsistent but rather are complementary. In other words, enforcement can buttress norms-based appeals for compliance. To support this argument, the article draws on an array of empirical evidence from both experimental "games" conducted in the laboratory and field experiments involving taxpayers.

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:

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:
    My criticism of Scalia is that he states that original understanding is the touchstone of all legitimate constitutional interpretation (a view I do not hold) but he nevertheless picks and chooses the occaisions under which he will invoke original understandings, based on his substantive views about the Constitution. Pointing this fact out does not commit me to acceptance of the philosophy of original understanding as the touchstone of all legitimate constitutional interpretation. Rather, it suggests that Scalia isn't being entirely honest about what his views on constitutional interpretation are.
Yes and no. I'm sure Jack is right in part, but a lot of work has to be done to make this point convincing. In particular, there are several legitimate and principled reasons for an originalist judge (as opposed to scholar) might depart from original meaning when deciding particular cases. Here are some:
    --The Originalist Position Is Outside the Feasible Choice Set. Justices need votes, but the different justices treat originalism in different ways. Unless Scalia were to dissent or concur in almost every case, he has to compromise.
    --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.
Now, I still think that judges tend to be inconsistent. My point is a very modest one. Inconsistency is hard to demonstrate.

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:
    From Process to Substance Three years ago when I first began attending ICANN meetings, the organization was consumed with process. The ill-fated global elections experiment was followed by the ERC (Evolution and Reform Committee). The impractical (global elections) was replaced by the byzantine (ICANN2's baroquely complex constitution in which everyone seems to elect everyone else in an Ourobus Worm of interlocking Supporting Organizations, Nominating Committee, and Board). Even ICANN insiders can't remember how it all works! But here is the thing: the last several meetings have focused on substance. Vint Cerf even said he enjoyred the Rio 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:
      --Privacy. ICANN faces a cluster of issues that revolve around the Internet and privacy. Of course, ICANN itself has responsibility for only a tiny slice of the Internet privacy problem. One part of that tiny slice is WHOIS, the system that allows anyone (you or me) to look up the name and address of anyone who registers a website. Many website registrants don't really give informed consent to making this personal information very public, although they do give formal consent. ICANN circumvented this issue in connection with the WHOIS task force recommendations, but this issue and others like it must be faced.
      --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 BU's excellent series, the always interesting Bob Bone workshops A Journey to the Limits of Trademark Law: Have Courts Gone Too Far?.
    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:
      To answer, we need to make two distinctions. The first is the distinction between descriptive legitimacy—the social fact that people believe some person or institution has the moral right to rule—and normative legitimacy—genuinely having the moral right to rule. These are two different notions, and we need to be clear about when we’re using one, when we’re using the other, and what, if anything, connects the two.
      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.
    This is the kind of crisp, clean, smart analytic work that I love. Read this paper. It is witty. It is smart. It makes progress.
    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:
      In this Article, we challenge the "monolithic” view of Congressional control over delegated power, which assumes that oversight committees will enforce the wishes of an enacting majority. In contrast with this prevailing view we argue that Congress consists of rivals who compete for control over power delegated to agencies. Individual committee members with access to oversight tools vie for control over agencies, both with each other and with past enacting majorities, to further their own interests. Contrary to the conventional understanding, we therefore argue, committee members sometimes defy majority preferences rather than reinforce them.

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 One: The November 2000 Marina Del Rey round--an ad hoc, unstructured beauty-contest.
    +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).
How will ICANN prevent the transitions from a special, limited-purpose sTLD beauty contest to a generalized gTLD beauty contest?

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:
    Christian Leuz (Penn) and Felix Oberholzer-Gee (Penn, Wharton) have uploaded Corporate Transparency and Political Connections.
    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:
      Until World War II, the United States was the only legal system to have active judicial review, and it was also the legal system within which a functionalist or pragmatist rather than a formalist approach to law generally was best established in legal education, commentary, and judicial discourse. What is the connection between these two phenomena? One possibility is that judicial review furthers a "statesmanlike" and hence a flexibly pragmatic approach to legal questions. Such a story can plausibly be told about how over the last half century legal systems around the world have gotten more pragmatic in their approach to law generally, as they have adapted to judicial review. A similar story can be told about American legal history - that John Marshall in establishing judicial review also inaugurated the Grand Style that led on to Cardozo and Llewellyn by direct inspiration. But on examination the latter story doesn't hold up. If judicial review led to pragmatic jurisprudence in this country, it was by reaction, not direct inspiration. The legal Progressives, who were skeptics about judicial review, effectively joined into a single "assault on formalism" their critiques both of Langellian private-law conceptualism, and of the aggressive classic-liberal constitutional doctrines of the Lochner era. These two tendencies were only loosely related, as we can see when we analyze the elements that lead us to describe a body of thought as formalist. But the Progressives' successful conflation of them into a single impressive bogeyman helped motivate the establishment of the functionalist orthodoxy that was articulated over the course of the twentieth century by Holmes, Thayer, Gray, Pound, Cardozo, Brandeis, Corbin, Wigmore, Llewellyn, Fuller, Traynor, Posner, and the many other pragmatist legal thinkers who have made up the mainstream of modern American legal thought.

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:

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 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.
    Coase Almost everyone in legal academia and economics knows that story of Ronald Coase's famous 1959 article, The Federal Communicatons Commssion. At the time, the FCC used the "beauty contest" approach to allocate broadcast spectrum licenses. Applicants came before the FCC to argue that they would serve "the public interest;" rivals argued they would not. The result was 75 years of disastor. A public resource was given away. The market in spectrum was inefficient. Many tens or even hundreds of billions of dollars of resources lay fallow. It took almost forty years for Coase's proposal, spectrum auctions, to prevail. In the short run, Coase's proposal was outside the feasible choice set; entrenched stakeholders (e.g. those who already owned licenses) could mobilize political resources to block the adoption of auctions. In the long run, Coase's ideas triumphed--witness the recent spectrum conference at Stanford, where the debate was between auctions (property in spectrum) versus commons (an even less regulated property regime). The FCC is now considering a "big bang" auction--putting unused and already licensed spectrum on the block.
    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:
      Scarcity. Once again, we heard the argument that there is no need to auction the gTLD name space (new .coms, etc.), because there is no real scarcity! This conversation (which I have had over and over again) is so frustrating. The notion that there is no scarcity in the name space is, of course, utterly ridiculous. Each name string is unique. If I own the right to operate the .com TLD, you can't own it. Each name string is a scarce resource in the economic sense, and anyone who disagrees doesn't understand the economic concept of scarcity. Of course, there are lots of supersmart people who make this mistake. Why? It's hard to know, but I suspect that it is because they are engineers and they look at the question as an engineering question. There is no shortage of possible gTLD strings in the engineering sense. If you allow strings of 25 characters in length, there are 38 to 25th power of available strings--and of course that is a vast number. More than enough from the engineering point of view. But not all strings are created equal. A top-level domain named .sk3kk99xs2 would be worthless. A top-level domain named .auto or .car might be worth quite a bit. If there were not scarcity in the name space, an auction would produce zero revenues, but the very same people who assert there is no scarcity also concede that some strings would have high prices in an auction! Amazing!
      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 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.
    More later!
For now, signing off from Rio!

New on SSRN Several interesting papers have gone up on SSRN recently:
    Karl Manheim (Loyola Marymount) and Lawrence Solum (Visiting San Diego & Loyola Marymount) have put up The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy. This paper from your humble blogger deals with the question as to how the gTLD name space should be allocated? Should there be new top level domains (like .com, .edu, and .info). We argue that the answer is yes. If so, how should they be allocated? Of the four possible allocation mechanisms, (1) "beauty contests" (public interest hearings), (2) "land rushes" (first applicant), (3) "lottery," (random assignment), or (4) "auction" (market-based allocatin), we argue that auctions are the best approach, because an efficient market will put the resource, the name space, to its highest and best use at the best price.
    Richard Pildes (NYU) uploads The Inherent Authoritarianism in Democratic Regimes. Here is a taste from the abstract:
      This article argues that authoritarianism is an inherent structural tendency of democratic regimes. The article is written as a chapter for a book, Out of and Into Authoritarian Law, that explores the revival of authoritarianism tendencies in certain new constitutional democracies of Eastern and Central Europe. The article locates one structural tendency toward authoritarianism in the techniques by which those currently holding political power manipulate regulation of democractic structures with the aim and effect of suppressing political competition.
    Daniel Farber (Minnesota) posts The Problematics of the Pareto Principle. Farber is going after Kaplow and Shavell. Here is a little bite from the abstract:
      The Pareto principle is often considered self-evident, particularly by economists. On close examination, however, it is much more problematic than is commonly believed. Preference satisfaction is only imperfectly related to values such as individual welfare and autonomy. Moreover, preferences can change during transactions or because of shifts in legal regimes, presenting knotty conceptual difficulties. Finally, complete adherence to the Pareto principle may be incompatible with other, equally appealing ethical standards. As Sen showed, the Pareto principle is inconsistent with at least some forms of libertarianism.
    Lynn Lopucki (UCLA) offers up Did Privacy Cause Identity Theft?, forthcomin in the Hastings Law Journal. Here is a short bit from the abstract:
      This essay argues that the decline of public identities over the past three decades, combined with increasing secrecy in the process of identification, is the root cause of the burgeoning problem of identity theft. Identity theft is easy because impersonation increasingly takes place in private transactions that are invisible to the victim.
    Aristides Hatzis (Athens, Philosophy & HIstory of Science gives us 'Just the Oven': A Law & Economics Approach to Gestational Surrogacy Contracts.
    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:
    The man who invented the World Wide Web explains its successor, the Semantic Web. His vision, now shared by many, is a Web that comprises meaning and intelligence along with data. What will it take to build it? For starters, just like the World Wide Web, it won’t be built. It will emerge from the distributed efforts of people all over the world defining their data in a way that will allow the data to carry its context with it, for use in other people’s content and applications. Call the Semantic Web the world’s largest, bottom-up, never-ending systems integration project, with the goal of making everything interoperate intelligently.... Tim Berners-Lee will describe some of the technologies and attitudes necessary to make that happen.
I'm sure this means something, but what?

Another Blogger from Rio Check out Ross Wm. Rader's

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:
    A few years ago, Peter Benson argued that unless claims in corrective justice are grounded on an independent, non-distributive measure of entitlement, corrective justice collapses into distributive justice. More recently, Stephen Perry argued that the autonomy of corrective justice can be secured with something more modest, namely a free-standing conception of harm. I argue, first, that Perry's account is closer to Benson's than we might at first think, and, second, that implicit in each is a view that we ought to reject, namely that corrective justice can be autonomous only if there are rights or entitlements which the law does not confer but must, on pain of injustice, protect. In conclusion I defend the view that corrective justice takes as found the positive law's measure of those interests that merit protection in individuals' interactions with others, and explain what, on this account, is meant by holding that corrective justice is autonomous.

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 Loyola Marymount's faculty workshop series, Judith Resnick (Yale) workshops Just Judges.
    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 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:
    Scholars have largely ignored one of the most important ways in which presidents influence the administrative state in the modern era, that is, by creating administrative agencies through executive action. Because they can act unilaterally, presidents alter the kinds of administrative agencies that are created and the control they wield over the federal bureaucracy. We analyze the 425 agencies established between 1946 and 1995 and find that agencies created by administrative action are significantly less insulated from presidential control than are agencies created through legislation. We also find that the ease of congressional legislative action is a significant predictor of the number of agencies created by executive action. We conclude that the very institutional factors that make it harder for Congress to legislate provide presidents new opportunities to create administrative agencies on their own, and to design them in ways that maximize executive control.
Get it while it's hot!

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 opening move.
    Buck's demurrer.
    Balkin's plea in abatement.
    Buck's Sur-Reply.
    Balkin's Latest Rejoinder.
    Here is an excerpt from Balkin's latest:
      The basic point I am trying to make is not, as Stuart suggests, that Scalia is necessarily engaged in logical contradiction. There are certainly ways to strike down affirmative action laws even given the congressional history, and I talk about them in the casebook. Rather, my complaint is that Scalia is being hypocritical, because he has never, to my knowledge, discussed the historical issues, even though they are easy to learn about, and even though he states, to any one who will listen, that original understanding is the touchstone of constitutional interpretation. My problem with Scalia is that he speaks with the arrogant assurance of one completely convinced that he is in the right when he has not done the necessary research to justify his conclusions about the constitutionality of affirmative action.
    New: Buck replies again.

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:
    This article responds to Jeremy Waldron's claim that the truth or falsity of moral objectivism makes no difference to the arbitrariness, or otherwise, of adjudication (the 'no-difference thesis'). I start by outlining the way in which I believe objectivism and its opponents should be distinguished, before setting out Waldron's arguments in favour of the no-difference thesis. I then consider a number of ambiguities in that thesis, before criticizing several attempts by Michael Moore to respond to Waldron's arguments. Having cleared the way for a new consideration of this issue, I argue that-depending on which interpretation of them we accept-Waldron's arguments: (i) misrepresent the nature of the debate between objectivists and anti-objectivists; (ii) beg the question by asserting that objectivism is wrong rather than irrelevant; or (iii) rely upon an indefensible account of political justification. Finally, I offer an example of how the truth or falsity of objectivism can have implications for adjudication, by suggesting two ways in which it may affect the legitimacy of judicial review.

Saturday, March 22, 2003 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

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:
    [I]t is important to separate out stated motives and actual motives. Just as I don't believe Democrats who say they oppose Estrada because they don't have enough information, I don't believe Republicans who say that Democrats' moves are escalatory. They both make these claims for the same reason: trying to obtain political advantage.
Hmm. On the one hand, I don’t want to discount this possibility—after all rhetorical exaggeration is surely part of the daily give and take of partisan politics. But on the other hand, I can’t bring myself to concede Rick’s point—Republicans seem convinced that Democrats are escalating in public and private. Just talk to Republicans who are involved with this issue behind the scenes. The technology of belief may not be as flexible as Rick assumes; it may be that rhetoric—once you get the persuasion machine in gear—tends to change the beliefs even of insiders. Rick continues:
    Thus, Democrats can avoid responding to charges that they are imposing ideological litmus tests (they are, just as Republicans are---I am reminded of Sen. Helms blocking all Democrats to the 4th Circuit on grounds that the court did not need any more judges to handle its caseload), and Republicans can claim that Democrats are taking "unprecedented" action against a nominee. What is escalating now is primarily the rhetoric, though I agree that rhetoric alone may cause an escalation.
Perhaps, I am taking a longer-run view than Rick. Recall that I have conceded that many of the tactics Democrats are employing now, were employed by Republicans in the last round (during the Clinton Administration). But take the long view. It is, I think, indisputable that the judicial selection process is more politicized today than 10 years ago, 25 years ago, 50 years ago. Even in the short run, I think it is telling that the Washington Times story Republican strategy used “going nuclear” as the metaphor. If that isn’t escalatory rhetoric, I don’t know what is.
Monsters and Apparitions Rick also writes:
    I also think Larry's parade of horribles is a bit too horrible. We are talking about politicization on the few (but important) ideological issues that matter most to the parties---abortion, affirmative action, etc. In most cases heard by most federal judges, I continue to believe that ideology has little or nothing to do with the decisions they render. In that context, they are the virtuous judges that Larry writes about so eloquently
On this, I think we may be talking past one another. My point was about the bottom of the downward spiral—what happens at the end of a long period of escalating judicial politicization? Rick’s response goes to a different question: how far have we progressed down the spiral? And here is my take on that. I think that Supreme Court has become quite politicized. Does this affect their decision making in cases that don’t involve political hot button issues? I’m quite sure it does—although the effect is sometimes quite subtle. But I agree with Rick that in lots of cases, the decisions are not openly ideological. Instead, they are something that is almost worse. They are careless, poorly researched, not well thought out. One of the real costs of a politicized Supreme Court is that it doesn’t much care about the issues that aren’t political. One of the downsides of a politicized judicial selection process is that it is unlikely to yield Justices who are independent thinkers, who are deeply learned in the law, and who possess the virtue of judicial integrity. The Supreme Court is more thoroughly politicized than the Courts of Appeal and the District Courts, but how long will that last in the current atmosphere?
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:
    Katrin Flikschuh (Essex) Kant on the Value of Freedom Paul Guyer (Pennsylvania) The Ethical Value of Aesthetic Experience: Kant and Alison Peter Niesen (Frankfurt) Hedonism in Kant and Bentham Philip Stratton-Lake (Reading) Acting from Duty and Moral Value
The location is Room M6, Wall Hall Mansion, Watford Campus, WD2 8AT.

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:
    Internationalized Domain Names--The Internet is a system of global cooperation between individuals, firms, non-profit institutions, and governments, but access to the Internet varies tremendously from nation to nation. One factor affecting the global digital divide is the domain name system. You can enter in your browser and get to the relevant website, but a similar feature is not available for character sets other than the Roman alphabet, Arabic numerals. This makes the Internet relatively less accessible for hundreds of millions or billions of people. This problem and its solution will be on the agenda next week.
    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:
    “An emphasis on misdemeanors may seem an appealing alternative to incarceration, but the outcome has often been repressive and costly,” Harcourt said. “A disproportionate number of minorities have been arrested, and police misconduct complaints have increased as stops, frisks and arrests for minor crimes have multiplied.” In Illusion of Order, Harcourt urged that much broader questions about punishment and criminal justice be asked rather than questioning whether strategies like broken windows policing do or do not work. “We need to ask how these methods for policing disorder shape our citizens, our civic culture and our social relations. Rather than viewing disorder as the cause of crime, perhaps we need to reexamine connections between crime and neighborhood poverty and stability. What is the relationship between order maintenance and our treatment of the unemployed? How will curfews and antiloitering ordinances affect our children’s intellectual and cultural development?”
Thanks to for the link!

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:

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:
    Recent developments in long-established democratic systems have reignited the old debate about the proper degree of governmental accountability. We build a simple model that captures the major virtues and dawbacks of accountability: having the ability to screen and discipline public officials on the one hand while inducing them to pander to public opinion on the other. We study the optimal allocation of power between accountable and nonaccount-able branches of government. Our main …ndings are that (a) technical decisions are ill-suited to the political process, (b) accountability is less desirable when there is a substantial risk of oppression by the majority, or conversely when “pork-barrel pandering” leads to a tyranny of minorities, and (c) nonaccountable o¢cials should be given less discretion than their elected counterparts, but should be held more individually responsible in committee decision-making.
Appropos of the current intense interest in judicial selection, I can't help but note that Maskin's model assumes that judges are selected randomly.

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:
    Terence J. Anderson, Professor of Law, University of Miami School of Law Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale law School Aharon Barak, President of the Supreme Court of Israel Robert A. Burt, Alexander M. Bickel Professor of Law, Yale Law School Kenneth M. Casebeer, Professor of Law, University of Miami School of Law Jules L. Coleman, Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy, Yale Law School Stephen Diamond, Professor of Law, University of Miami School of Law John Hart Ely, Richard A. Hausler Professor of Law, University of Miami School of Law Owen M. Fiss, Sterling Professor of Law, Yale Law School Myriam Gilles, Associate Professor of Law, Yeshiva University, Benjamin Cardozo School of Law Robert W. Gordon, Chancellor Kent Professor of Law and Legal History, Yale Law School Morton J. Horwitz, Charles Warren Professor of American Legal History, Harvard Law School Samuel Issacharoff, Harold R. Medina Professor in Procedural Jurisprudence, Columbia Law School Vicki C. Jackson, Professor of Law and Associate Dean (Research), Georgetown University Law Center Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr. Center for International Human Rights, Yale Law School Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School Stanley N. Katz, Professor of Public and International Affairs; Faculty Chair, Undergraduate Program; Director, Center for Arts and Cultural Policy Studies, Princeton University Anthony T. Kronman, Dean and Edward J. Phelps Professor of Law, Yale Law School Frank I. Michelman, Robert Walmsley University Professor, Harvard Law School George L. Priest, John M. Olin Professor of Law and Economics, Yale Law School Judith Resnik, Arthur Liman Professor of Law, Yale Law School Thomas Scanlon, Alford Professor of Natural Religion, Moral Philosophy, and Civil Policy and Chairman of the Philosophy Department, Harvard University Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School Jonathan Simon, Professor of Law, University of Miami School of Law Irwin P. Stotzky, Professor of Law and Director of the University of Miami Center for the Study of Human Rights, University of Miami School of Law Susan P. Sturm, Professor of Law, Columbia Law School

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:
    The thinkers who developed what we now know as the "just war theory" made a useful distinction. They suggested two sets of precepts for when a war may be deemed moral. The first – which they called jus ad bellum criteria – set out ethically acceptable reasons for war: centred around lawful authority, just cause and right intention. We heard much of these in the run-up to war. But it is the second set of arguments which is relevant today. The notion of jus in bello sets out two principles to determine whether the method of fighting is just: discrimination – which asks who are legitimate targets – and proportionality – which asks how much force is morally acceptable. This reasoning may have its roots in medieval theology but sound reasons of realpolitik mean it should be kept in mind. If the Allies are to minimise the resentment that the war will cause in the Middle East, and among Muslims elsewhere, the level of bloodshed needs to be minimised. Such restraint will also help when it comes to persuading our unhappy European partners to become involved in the task, and cost, of post-war reconstruction. But, most importantly, when democracies do battle with despots it is essential they retain the high moral ground – which is part of what distinguishes the governments of George Bush and Tony Blair from the tyranny of Saddam Hussein.
Here is a collection of links to resources on just war theory on the web::

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:
    Acting in concert, Michigan Democratic Sens. Carl Levin and Debbie Stabenow told the Judiciary Committee they will block the nominations of Richard Griffin, David McKeague, Susan Bieke Neilson, and Henry Saad to the Sixth Circuit Court of Appeals. In addition, Levin and Stabenow said they will block the nomination of Thomas Ludington to a seat on the U.S. District Court. That means the two senators are attempting to kill every Bush nominee from the state of Michigan.
I have been posting to the effect that moves like this are predictable, because we are currently in a downward spiral of retaliation--part of a very large pattern of politicization and polarization of judicial politics. The latest round of escalatory moves and threats is certainly more confirmation for the downward spiral hypothesis. My game theoretic explanation can be found here. By the way, the enormously valuable How Appealing (Howard Bashman) has been keeping all of us up to date on the Estrada nomination.
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:
    Let me refer in future to the underlying principle that is at work her as 'the principle of responsibility'. This is to be defined as the principle that unequal outcomes are just of they arise from factors for which individuals can properly be held responsible, and are otherwise unjust. I think that this principle is widely shared not only in the USA but also in other afflue nt western societies. Its appeal is probably a greater deal more broad than that. But for my purpose it is enough that the principle on which I am focusing is not an eccentric idea that I made up but has a lot of support. This makes it worth asking how far the principle of responsibility can really be used to justify inequalities of the kind and scale found in countries such as America and Britain, which are the two I know the most about.
If you are familiar with Barry's work, you will know where he is heading:
    [O]ne condition of equality of opportunity is equal access to wealth, which could be aproached by having high taxes on wealth and confiscatory levies on bequests and on substantial gifts, with the proceeds distributed equally to everybody at, say, the age of eighteen. Proposals along these lines (though on a more modest scale) have been made by academics in both the USA and Britain. Whether we regard them as within the realm of political possibility or not, no society that does not have such a system can begin to pretend to honour the principle of responsibility and the corresponding interpretation of equal opportunity.
It goes without saying that Brian Barry is one of the preeminent political philosophers of his generation.

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:
    In the spring semester following the attacks of September 11, 2001, and the start of President Bush's "war on terror," I gave an unusual assignment to my students. I asked them to write essays detailing exactly why they are different from terrorists. The midshipmen were to spell out as clearly as possible how the roles they intended to fill as future Navy and Marine Corps officers are distinct in morally relevant ways from that of, say, an Al Qaeda operative. They dubbed the assignment "creepy," but gamely agreed to do it. After they had read their efforts aloud, I gave the project a twist. I had them exchange papers, and told them each to write a critical response to their classmate's paper, from the point of view of a terrorist. Then I had them read those responses aloud.
How did the midshipmen react? "The midshipmen found the entire exercise very disturbing because it forced them to reflect on that thin but critical line that separates warriors from murderers."

New on SSRN Here is today's collection of links to new and interesting papers posted on SSRN:

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: