Legal Theory Blog |
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 All the theory that fits! Home 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. RSS Links for Legal Theory Blog --Lawrence B. 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Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2011 - 04/01/2011 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Friday, October 31, 2003
Leiter on the Reproduction of Hierarchy Check out this post by Brian Leiter on the history of hierarchy in the academic philosophy in the U.S. Baude on the Brown Nomination Will Baude's post on what Brown has actually said about Lochner is essential reading if you are interested in the current controversies over the judicial selection process. Amar on the Scalia Recusal in the Pledge Case Vik Amar has some characteristically thoughtful remarks over on Findlaw. Here is a taste:
Heuer on Reasons and Oughts at Penn At the University of Pennsylvania philosophy colloquium, Ulrike Heuer (Penn) presents Reasons and Oughts. Otsuka on Skepticism About Saving the Greater Number at Bristol At the University of Bristol, Mike Otsuka (UCL) presents Scepticism About Saving the Greater Number. Surf on over to Crooked Timber, for some more on Otsuka from Chris Bertram. Waldron on the Primacy of Justice at North Carolina At the University of North Carolina philosophy speakers series, Jeremy Waldron (Sheps Distinguished Visitor) presents The Primacy of Justice. Meidinger on Property & Development at Buffalo At SUNY Buffalo, Errol Meidinger presents Property Law in the Maw of Development Policy and Institutional Theory: Problems of Structure, Choice and Change, with comments by Sharmistha Bagchi-Sen. Welcome to the Blogosphere . . . belatedly to The Serious Law Student. So that's where the serious law student is! Thursday, October 30, 2003
Privilege Sticks, or why the defeat of cloture on Pickering is important The democrats have defeated the cloture vote on Charles Pickerings nomination to the U.S. Court of Appeals. Here is taste from the L.A. Times report:
Class Conflicts: Ex Post?, Ex Ante? or Behind the Veil?
Here is the 64 thousand dollar question: How do we determine what counts as an impermissible conflict of interest? Miller on Conflicts of Interest in Class Action Litigation As you can tell, this whole topic fascinates me. So you will not be surprised to learn that I was excited to see that Geoffrey Miller (New York University School of Law) has posted Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard on SSRN. Miller's very interesting paper addresses these important and difficult questions. Here is the abstract:
A Few Observations About Class Conflicts & the Veil of Ignorance Miller’s paper deals with the intersection between two topics that are near and dear to my heart, procedural justice and the veil of ignorance as a theoretical tool for normative analysis of law. In order to get at the really interesting stuff, I need to fill you in on some background about class actions & class conflicts, so let’s roll!
Theory and Practice: The Role of Class Counsel That’s the theory, but the practice is a bit different. In the real world, the major decisions in a class action are likely to be made by the lawyers for the class, with the class representative acting more or less as a “rubber stamp,”; because the lawyers know more and it would be very costly for the representative to learn enough meaningfully to control the lawyer. One of the requirements for class certification is “adequacy of representation.”; Given the important role of class counsel, it is not surprising that both the representative party (the nominal plaintiff) and the counsel for the class must be capable of adequately representing the interests of the absent members of the class. Inadequate Representation A judge might find that the class representative or class counsel is an inadequate representative for a variety of reasons. For example, the class representative might be incompetent, unable to understand the implications of her decisions on behalf of the class. Or the class counsel might be insufficiently experience, as when a first-year lawyer attempts to represent a class in a very high stakes case. But one of the most important reasons for finding inadequacy of representation is “conflict of interest.” One kind of conflict is a conflict between the representative party and the class. A second kind of conflict is between class counsel and the class. A third kind of conflict occurs when some members of the class have interests that oppose those of other class members. One of the really terrific things about Miller’s paper is that provided a wonderful typology of conflicts of interests in class actions. Intraclass Conflicts The third kind of conflict is a conflict between subgroups (or members) of the class. Give me an example! A famous example is provided by the Supreme Court’s decision in Hansberry v. Lee, a case involving a racially restrictive covenant and a subdivision. Some members of the class had an interest in having the covenant upheld; other members of the class had an interest in having the covenant struck down. But the class included both groups and was controlled by the group the wanted the covenant upheld. This is a classic example of an intraclass conflict. What I Am Not Going to Discuss Miller’s paper discusses all kinds of class conflicts, but from this point forward I will limit my discussion to intraclass conflicts. These are probably not the most important conflicts from a practical standpoint; conflicts between counsel and class best fit that description. But intraclass conflicts are still important, they are very interesting to me, and Miller has some very provocative points to make about them.
Ex Ante: Forward Looking In general, ex ante means forward looking. Thus, the ex ante perspective on class conflicts asks the question from the point in time at which the certification decision is made, i.e. at the outset of the litigation. Given the facts as they are known at the outset of the litigation, will there be a conflict between subgroups within the proposed class? Ex Post: Backward Looking In general, ex post means backward looking. The ex post perspective on class conflicts asks the question from the point in time when the litigation has been resolved, the class has either prevailed or lost, and if the class has prevailed, relief has been awarded. Given the facts as they are known at the end of the litigation, was there a conflict between subgroups within the certified class? Why the Difference in Perspective Is Important In the very same case, the answer to the question, “Is there an intraclass conflict?,” may vary, depending on whether we answer the question from the ex ante or the ex post perspective. Why? Some intraclass conflicts that do not appear or exist ex ante, come into being or become noticeable ex post. For example, when a class action settles, it may happen that at some point in the settlement negotiation it will become clear that the defendant’s offer is for a limited amount (e.g. a dollar sum or set of payouts with a present value equivalent to some sum). And it is possible that the total amount on the table is exceeded by the best estimate of the best estimate of the legally correct value of all the claims. Each class member would prefer that she get the full legal value of her claim, and that the shortfall in the total settlement be borne by other members of the class. Generalizing the Importance of Perspective More generally, once the class action is over and done with, there may well be cases where individual class members will say, “I now see that I could have done better through individual litigation." Or, “Now I see that a subclass could have been carved out, and I would have done better if I had been a member of that subclass.” The class action, ex post hurt me (or me and others like me) but helped other members of the class. Why Ex Post Intraclass Conflicts Are Not Grounds for Decertification Ex post conflict usually is not a basis for decertification of a class. Why not? In the case of a limited settlement amount, the available funds for payout can be distributed so the shortfall is borne equally (or proportionately) among all class members—class counsel has no incentive to deviate from a fair allocation of the settlement and the court should only approve a settlement that fairly allocates the proceeds among class members. Moreover, from the ex ante perspective, it may well be in the interests of all class members to proceed on a class basis, despite the fact that some members of the class may receive less from the class settlement than they might receive from individual litigation. Individual litigation may result in a greater individual award, but also greater attorney’s fees, and individual litigation may be riskier for plaintiffs, with some recovering more from their individual lawsuits but others recovering less or nothing at all. So depending on the facts, the ex post conflict of interest may well disappear if viewed from the ex ante perspective.
Class Conflicts Behind the Veil
The Interests of the Representative Class Members Miller then goes on to describe the interests of the representative class members. As before, substitute “representative” for “reasonable” in the description that follows:
Option Two: Proceed with subclasses having different representation. Option Three: Do not proceed with a class action, but instead allow each class member to bring an individual lawsuit.
Process Costs and Benefits--such as the cost to the plaintiff of participating in individualized litigation and the amount of the damages that will be consumed by attorney’s fees.
Example One: Hansberry v. Lee The first example is based on a very famous Supreme Court case. I'm altering the case to make it simpler, but the changes I make will not affect anything important for our purposes. Here is the setup:
How would we analyze Hansberry v. Lee from our three perspectives (ex post, ex ante, and behind the veil?
Ex Ante: Here it gets just a tiny bit tricky, because it is actually not absolutely clear that the conflict in Hansberry did exist ex ante. The Supreme Court, however, seems to assume (reasonably) that at the time of certification, some class members would want to be free to sell to noncaucasian buyers and hence that some class members did and some did not want the declaration that the covenant was valid. Assuming this is the case, then from the ex ante perspective, there was a conflict in Hansberry and certification should have been denied. Behind the veil of ignorance: But how would we look at Hansberry from behind the veil of ignorance? Suppose you are behind the veil. You don't know which member of the class you represent. How would you decide whether to consent to the conflict? Behind the veil, you don't know whether you favor or oppose the requested declaration. You could look at the costs and benefits of either decision. But if you do look at costs and benefits, you very well may consent to the conflict. Why? Because from behind the veil (as it is specified by Miller), all you can do is aggregate. If the monetary benefits of enforcing the covenant exceed the costs, you will consent. If there is a tie on direct costs and benefits (outcome costs), you will still consent, because consenting minimizes litigation costs. Suppose, however, that you don't look at costs and benefits. Then, all you could do would be to count noses. If more members of the class would support the declaration than oppose it, then you might reason, after the veil is lifted, it is more likely than not that the party I represent will favor the declaration, so from a risk natural self-interested perspective, I should consent to the conflict, because that maximizes the expected value of the parties that I represent.
Ex Ante: Reasoning from the ex ante perspective will be similar, but I will have less information. First, I will not know the actual amount awarded pursuant to a class action. Second, I will not have any additional information about the value of my own claim (e.g. any injuries that would become apparent between certification and the time at which the ex post evaluation would occur. Given the setup of the hypo, members of the high-value claim subgroup would not consent to a unitary class, but they would consent to two subclasses. Behind the veil: But behind the veil of ignorance, consent is automatic. The parties behind the veil simply maximize the payouts for the group as a whole. Given that payouts will be larger with a class action than with subclasses or individual litigation (because the litigation costs will be lower), the representative parties behind the veil would give their consent to the conflict of interest. Interestingly, Miller, in his discussion of Amchem does not employ the veil of ignorance, and seems to argue instead, that ex ante conflicts would not be consented to by the reasonable plaintiff. (See page 37 of his working paper.) Wall Street Journal on Janice Brown The Wall Street Journal weighs in today on Janice Brown's nomination:
This and That My apologies for accidentally posting several of today's events yesterday. The posts have been moved & yesterday's events were posted late. I've added En Banc to the blogroll & regular readers will have already noticed that the sidebar has been reorganized. Kumm on a Constitional Theory of the Relationship between National and International Law at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Mattias Kumm (NYU School of Law) presents Towards a Constitutional Theory of the Relationship between National and International Law. Here is a taste:
Sunder on the New Enlightenment at Yale At Yale's Legal Theory Workshop Madhavi Sunder (University of California at Davis (Law)) presents The New Enlightenment & Piercing the Veil. Here is a taste:
Mack on Realism and Civil Rights at Alabama Kenneth Mack, of Harvard Law School, will be presenting the University of Alabama Law School's annual Hugo Black Leture today. His title is The Relationship Between the Legal Realist and Civil Rights Movements. Miller on Immigation at University College, London At University College, London's School of Public Policy, David Miller (Oxford) presents Immigration: the Case for Limits. Gordon on Copyright at Boston University At Boston University, Wendy Gordon presents Rendering Copyright Unto Caesar: Free Speech, Locke, and the Sphere of Gift. Galston gives the Terrelll Lecture at Texas on Structures of Diversity At the University of Texas, William Galston (University of Maryland) presents the Alexander Terrell Centennial Endowed Lecture: Structures of Diversity: Political Pluralism and the Limits of Public Power. Klausner on Foundations at Michigan At the University of Michigan's law and economics series, Michael Klausner (Stanford) presents Discounting Future Charity: An Analysis of Foundation Payout Rates and their Regulation & When Time is Not Money: Foundation Payouts and the Time Value of Money. Priester on Sentencting & Separation of Powers at Florida State At Florida State University, B.J. Priester (FSU College of Law) presents The Separation of Powers and the Constitutional Law of Sentencing. Hill on Rating Agencies at George Mason. At George Mason, Claire Hill (Chicago-Kent School of Law) presents Rating the Rating Agencies. Montini on International Environmental Necessity at Oxford At Oxford's Public International Law Discussion Group, Massimiliano Montini presents Environmental Necessity in International Law. Bond on Many Madisons James E. Bond (Seattle University School of Law) has a review of James Madison and the Future of Limited Government on The Independent Review. Here is a taste:
Marx and Wittgenstein? Courtesy of Online Papers in Philosophy, David G. Stern has a Review of Gavin Kitching and Nigel Pleasants' (eds.)Marx and Wittgenstein: Knowledge, Morality and Politics up on Notre Dame Philosophical Reviews:
Conference Announcement: The New Federalism
Class Action Reform at the AEI today
Wednesday, October 29, 2003
Two Talks Today My apologies to the readers of Legal Theory Blog. I neglected to post the following entries from the Legal Theory Calendar earlier today:
At Australian National University, Hilary Charlesworth presents Is International Law Relevant to the War in Iraq and its Aftermath?. Felten on DMCA Exemptions Rulemaking Ed Felten reports on the very narrow exemptions granted for the next three years. The official scoop is here. And Ernest Miller has a great collection of links. And some more from Derek Slater here. Rorty Reviews Posner, or what is the sound of two pragmatists clapping? Richard Rorty (pragmatist philosopher) reviews Law, Pragmatism, and Democracy by Richard Posner (pragmatist) judge. Here is a taste:
Welcome to the Blogosphere . . . to Lee Blog, a venture of Professor Edward Lee of Ohio State's law school and the author of the very fine Rules and Standards for Cyberspace, 77 Notre Dame L. Rev 1275 (2002). Here is a taste of what promises to be a very interesting effort:
More on Iterative Prisoner's Dilemmas: The Grim Trigger Solution Dennis O'Dea (Department of Economics, University of Illinois) writes to suggest that tit for tat is not solution for the iterative prisoner's dilemma game (as described in this past Sunday's Legal Theory Lexicon). Here are his remarks:
Subramanian on Bargaining in the Shadow of . . . Guhan Subramanian (Harvard Law School) has posted Bargaining in the Shadow of Takeover Defenses (forthcoming Yale Law Journal, Vol. 113, No. 3, December 2003) on SSRN. Here is the abstract:
Tuesday, October 28, 2003
Must Reading for Cybertheorists I was just over at Ernest Miller's The Importance Of. I just cannot say enough in praise of this wonderful blog. Miller has recent posts on the future of TIVO, the broadcast flag, next generation DVD, and a slew of other topics. Miller's blog is a reminder of the transformative possibilities of the Internet. Oh, I'd better stop now. New Papers on the Net Here is today's roundup:
Downward Spiral of Politicization Department In the New York Times, Neil Lewis has a story titled Where the Gloves Are Nearly Always Off. Here is a taste:
Harlow on Distributed Justice at Oxford At Oxford's Faculty of Law Professor Carol Harlow QC, FBA, delivers The Clarendon Law Lectures: Towards Distributed Justice. O.K., the title got me. What is "distributed" justice? Leiter on Law & Evolutionary Biology at George Mason This should be good! At George Mason, Brian Leiter (University of Texas, Law and Philosophy) presents Why Evolutionary Biology is (so far) Irrelevant to Law. Rabban on Historical Jurisprudence at Texas At the University of Texas, David Rabban presents The American School of Historical Jurisprudence. Here is a taste:
Viens on Relativism and Applied Ethics at the Ockham Society At Oxford's Ockham Soceity, Adrian Viens (Oxford) presents Relativism and Applied Ethics. Ghosh on Copyright as Privatization at Oxford's IP Seminar At Oxord's IP Seminar, Shubha Ghosh (SUNY Buffalo) presents Copyright as Privatisation. Eleftheriadis on the Identity of Legal and Political Philosophy at Oxford At Oxford's Jurisprudence Discussion Group, Pavlos Eleftheriadis presents The Identity of Legal and Political Philosophy. Broome on Rationality at Brown At Brown University's philosophy department, John Broome (Oxford) does the first in a series of three lectures:
Yu on the Copyright Divide Peter Yu (Michigan State University-DCL College of Law) has posted The Copyright Divide (forthcoming Cardozo Law Review, Vol. 25, 2003) on SSRN. Here is the abstract:
Tiefenbrun on the Life of a Geisha Susan Tiefenbrun (Thomas Jefferson School of Law) has posted Copyright Infringement, Sex Trafficking, and the Fictional Life of a Geisha (forthcoming Michigan Journal of Gender & Law, Vol. 10) on SSRN. Here is the abstract:
Taipale on Data Mining K. A. Taipale (Center for Advanced Studies in Science and Technology Policy) has posted Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data" (forthcoming 5 Columbia Science & Tech. Law Review (December 2003)). Here is the abstract:
Conference Announcement: Annual Meeting of the American Society for Legal History November 13 through November 16, the Annual Meeting of the American Society for Legal History, takes place in Washington, DC. Here is a the website & here is the program. Monday, October 27, 2003
New Papers on the Net Here is today's roundup:
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