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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Wednesday, December 31, 2003
Change of Management For everything there is a season. For reasons that are beyond my control and which I do not have authority to divulge, the management of Legal Theory Blog is changing hands. For details, surf here.
Update: My apologies to those of you who did not follow the link to Ciceronian Review's satirical post suggesting that LTB had been taken over by Dick Cheney. Not really.

Conference Announcement: Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference Yale Law School will be hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference on March 26-28, 2004. Here is the description:
    The Information Society Project at Yale Law School is pleased to announce its upcoming conference on Cybercrime and Digital Law Enforcement entitled: "Digital Cops in Virtual Environment," which will take place on March 26-28, 2004 at Yale Law School. This ground-breaking conference will bring together policy makers, security experts, law enforcement personnel, social activists and academics to discuss the emerging phenomena of cybercrime and law enforcement. The conference will question both the efficacy of fighting cybercrime and the civil liberties implications arising from innovations in law enforcement methods of operation. During this weekend-long conference, a distinguished group of experts will discuss how a shift to a digital environment: (1) changes the crime scene; (2) facilitates the commission of new types of crimes; (3) leads to radical changes in law enforcement methods; (4) equips law enforcement with new tools of surveillance, technological design and risk sorting systems; (5) presents challenges for the legal process; and (6) introduces new forms of social resistance through hacktivism and counter-surveillance.

Bainbridge on the SEC Shareholder Access Proposal Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted A Comment on the SEC Shareholder Access Proposal on SSRN. Here is the abstract:
    The Securities and Exchange Commission (SEC) recently proposed a set of amendments to its proxy rules intended to provide shareholders of public corporations with a limited ability to nominate candidates for a corporation's board of directors and to have their nominee placed on the corporation's own proxy statement and card. This essay reviews the principal features of the proposal and identifies several issues remaining for resolution. The essay concludes that the SEC likely has authority to adopt the proposal, but argues that the costs the rule will impose on corporations outweigh any likely benefits from greater shareholder democracy.

Bibas on Therapeutic Judging Stephanos Bibas (University of Iowa - College of Law) has posted Using Plea Procedures to Combat Denial and Minimization (JUDGING IN A THERAPEUTIC KEY, Bruce J. Winick & David B. Wexler, eds., 2003) on SSRN. Here is the abstract:
    Criminal defendants, who may be ashamed of their acts and feel guilty, are often loath to admit guilt to others or even themselves. Thus, many enter Alford or nolo contendere pleas, which refuse to admit guilt but accept punishment as if guilty. Defense lawyers and many judges and prosecutors like these pleas because they are efficient and avoid the ordeals of trials. This book chapter criticizes Alford and nolo contendere pleas, because their efficiency comes at a steep price. The defendants who most want to use these pleas are in deepest denial, but they are the ones who most need to confront and admit guilt as a first step towards moving past it. The legal system can challenge their denials at trial, or it can allow guilty defendants to persist in it. Guilty defendants who remain in denial resist successful treatment and are much more likely to reoffend. They also deny victims closure, catharsis, and vindication. And they frustrate society's desire for clear, unambiguous resolutions and moral messages. For those defendants who cannot or will not admit guilt, the law should insist on jury trials, to vindicate the innocent and confront the guilty defendants. In short, jury trials are valuable morality plays. Alford and nolo contendere pleas short-circuit this process, exalting efficiency at the expense of key therapeutic and moral goals of the criminal justice system.

Semeraro on Capital Sentencing Steven Semeraro (Thomas Jefferson School of Law) has posted Responsibility in Capital Sentencing (San Diego Law Review, Vol. 39, p. 79, 2002) on SSRN. Here is the abstract:
    The recent evidence of innocents on death row has led to a call to revisit the legal doctrine governing capital punishment. But abandoning that doctrine would be the wrong response. It fosters individual responsibility in capital sentencing by placing the participants in the process - from the legislator to the prosecutor, trial judge, and jury and ultimately to the appellate judge - in an environment in which their sense of responsibility is broadened compared to earlier capital punishment systems. By strengthening the sense of responsibility of those inside the process, we heighten our trust in their decision. Drawing on psychological research, empirical data from juror interviews, and the social theory of Vaclav Havel, this article suggests that individual responsibility - rather than the goals advanced by the Court itself (consistency and individualization) - is the key to a moral capital sentencing process. Although modern doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. This article proposes two concrete ways to improve existing doctrine: (1) require the trial judge to explain the sentencer's role to the jury in the narrative voice, a way of speaking associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences, bringing the responsibility of appellate judges in capital cases into line with the responsibility they bear in other constitutional cases.

Cohen and Blavin on Internet Metaphors I. Glenn Cohen and Jonathan H. Blavin (Law Clerk, U.S. Court of Appeals for the First Circuit and Government of the United States of America - 9th Circuit) have posted Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary (Harvard Journal of Law and Technology, Vol. 16, No. 1, p. 265, Fall 2002) on SSRN. Here is the abstract:
    This paper addresses the evolution of metaphors for the Internet and shows how they have constrained and determined the development of cyberlaw. Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems. Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains. Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse. Under the classic formalist view of common law analogy as syllogism, analogical reasoning from precedent begins with the establishment of a rule behind a case or group of similar cases. Judges then apply the rule fairly mechanically to the case at hand to yield a result that is understood through the background of precedent. In contrast to figurative literary metaphors, highly structured analogical, metaphorical mappings may be used to make persuasive, logical arguments. Like all metaphors, however, legal metaphors possess a paradoxical quality, embodied in the constant tension between the legal metaphor's literal incongruence and metaphorical congruence with reality. Metaphors whose metaphorical congruence with reality is perceived as dominant, such as the "marketplace of ideas" metaphor in First Amendment jurisprudence and the "bundle of sticks" metaphor in Takings clause jurisprudence, will continue to have analogical value and will be perpetuated through judicial opinion and scholarly commentary. Conversely, legal metaphors erceived as having greater literal incongruence with reality, such as the slavery metaphor of African Americans as chattels, will lose their value and be discarded. While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others. Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable. A bad metaphor can also simply lead to bad decision making. For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce. This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinions. Three metaphors in particular will be examined: the information superhighway, cyberspace, and the Internet as "real" space. Given the Internet's ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it. Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor's literal congruence with reality. The purpose of this paper to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them.

Tuesday, December 30, 2003
Internet Law in Review Doug Isenberg's Internet Law Year in Review 2003 is available on Gigalaw.

More on Public Reason and Faith-Based Prisons My post from yesterday, Public Reasons and Faith-Based Prisons, has prompted a variety of reactions. The distinguished law and religion scholar, Steve Smith, emailed comments which I've appended at the end of my original post. Rick Garnett replied to my post over at Punishment Theory. Here is a taste of Rick's post:
    As for your hypo about sectarian legislative preambles -- the "Christianity is the true religion" preamble strikes me as inappropriate, though I see nothing illiberal--or unconstitutional--about a legislator supporting and arguing for the policy for that reason, assuming that the legislator sees some connection between the truth of Christianity, the proposal in question, and the common good. That the state should speak in a non-religious voice does not mean, it seems to me, that citizens and legislators must do so.
Stephen Bainbridge emails to remind me of the United States Supreme Court's opinion in Holy Trinity Church v. U.S., 143 U.S. 457 (1892), which famously (or infamously) states:
    If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, 'In the name of God, amen;' the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.
And John Gardner (Oxford) has a marvelous comment up over at Punishment Theory. Here's a brief excerpt from Gardner:
    The liberal prohibition on such government double-dealing does not entail that there is some special class of reasons which is such that governments should never rely on them. It is consistent with governments relying on reasons of utility, for example, so long as they do not conceal that they do so. It is also consistent with governments relying on reasons of respect for God or respect for art, respect for marriage, etc, so long as they do not conceal that they do so.
Finally, Kyron Huigens has a nice post including the following remark:
    A reason is suitable for public debate, public policy, and law only if some empirical evidence -- available to all -- could in principle disprove the proposition. This excludes faith-based reasons for the same reason that science cannot disprove religion: like faith itself, faith-based reasons are not falsifiable in principle. This kind of belief is explicitly not premised on empirical evidence, but instead on an experience of the divine.
On this last point, it seems to me that there is a grave difficulty with Huigens's suggestion. Let me repeat the crucial sentence: "A reason is suitable for public debate, public policy, and law only if some empirical evidence -- available to all -- could in principle disprove the proposition." How would this criteria apply to the values that are conventionally used as premises in public political debate? For example, what empirical evidence could, in principle, disprove the proposition that human dignity is a very great value or that the innocent persons should not be injured or killed absent the most extraordinary justifications? Perhaps I misunderstand Huigens point. Surf on over to Punishment Theory for more!

Defending the MLA Chun the Unavoidable defends the MLA against familiar criticisms in this post. See also Invisible Adjunct, John & Belle Have A Blog and John Holbo. Here is a taste of Chun's post:
    A larger point is that one of the reasons that people (especially journalists) feel like the MLA is an allowable target is because of what they perceive as the low barrier of entry. Anyone can (or should, at least) read novels, poems, short stories, etc. So why do these pretentious fops get up there and pretend they know so much better than the rest of us? Huh? HUH!?!? Relax. We do know more. It's only a delusion that makes you think that you know enough about the problems of literary interpretation to demand that its professional discourse make perfect sense to you. It's an understandable delusion, but one that you can cure yourself of quickly enough by reading everything ever written about, for example, Frank Norris over the next five or so years. Now write three hundred pages of scholarship on him that advances something new and takes into account the relevant developments in literary history and interpretation. After you've completed this exercise, which I'm sure any Chronicle journalist or average blogopath could do in record time, then you'll realize just how little is actually known about how literature works and the reason why professional attempts to analyze it are fraught with jargon and assumptions of prior knowledge.
Although I'm reasonably well informed about theories of interpretation (literary and otherwise), I really don't know much about the current state of applied literary theory--i.e. the application of literary theory to particular works or authors. So, I really don't feel qualified to enter into this debate in an informed way. I have my prejudices, but I must confess that they are most just that: Chun is right: article titles certainly are an inadequate basis to judge scholarship. Here is a question I do find interesting: What should count as "adding value" in the context of literary scholarship? Of course, the criteria will be contestable (part of literary theory itself), but contestability does not equal subjectivity. For example, should it count as a criterion for adding value that the content of the scholarship could, in principle, lead a reader to a deeper or more enriching understanding of the work in question? I'd better stop now, before I proceed deeper into the minefield.

Rorty on Habermas Richard Rorty has a marvelous review of Jurgen Habermas's Truth and Justification on Notre Dame Philosophical Reviews. Here is a taste:
    Habermas is one of the few philosophers who is as much at home with Hegel, Hamann and Heidegger as he is with Davidson, Sellars and Dummett. So he is able to move back and forth, smoothly and perspicuously, between small-scale critical analyses and insightful historical comparisons and generalizations. The result is a survey of the contemporary philosophical scene that is far more imaginative, and far more stimulating, than the sort found in books whose authors’ range of reference is limited to the last few decades’ worth of work within analytic philosophy.
And from a bit later in the review:
    Habermas regards Brandom as representing “the state of the art of pragmatic approaches in analytic philosophy of language”, but thinks that Brandom’s “assimilation of the objectivity of experience to the intersubjectivity of communication is reminiscent of an infamous Hegelian move” (7-8). He reads Brandom as an arch-contextualist, whose inferentialist theory of the nature of propositional content “obliterates the distinction between the intersubjectively shared lifeworld and the objective world”. Brandom, he says, “does not rescue the realist intuitions by recourse to the contingent constraints of a world that is supposed to exist independently and for everyone” (155), and so is driven to a linguistified version of Hegel’s objective idealism. Habermas argues that we need a concept of empirical truth that “connects the result of successful justification with something in the objective world” (42). This means keeping intact the distinction between the availability of a “justification-independent point of reference” for assertions of empirical fact and the absence of such a point of reference when we turn to moral judgments and norms. In morality, he says, we lack “the ontological connotation of reference to things about which we can state facts” (42). So he criticizes Brandom’s refusal to accept any version of the Kantian distinction between theoretical and practical uses of reason.
And finally:
    Like Putnam and the late Bernard Williams, Habermas wants to naturalize and de-transcendentalize philosophy, and to disconnect morality from metaphysics. So he is willing to concede a lot of ground to Nietzsche’s polemics against Plato—and in particular to give up on the correspondence theory of truth. But he nevertheless holds on both to claims of unconditionality and to what he calls “the natural Platonism of the lifeworld”—a Platonism that insists on “a justification-transcendent standard for orienting ourselves by context-independent truth-claims” (254).
Highly recommended!

Dana on Existence Value In a world of cost-benefit analysis, how might we account for the value associated with the mere existence of particular natural features (wetlands, forests, etcs.) when that value is not reflected in any form of consumption--other than knowledge that the particular feature exists? David A. Dana (Northwestern University Law School) has posted Existence Value and Federal Preservation Regulation on SSRN. Here is the abstract:
    Conventional economic and political theory predicts that the states will underregulate the degradation or destruction of natural resources within their borders when some or all of the resulting adverse effects fall outside their borders, that is, upon out-of-staters. Academic critics of the federalization of environmental law agree with this conventional view at an abstract level, but, in their view, only the physical effects of the destruction of a natural resource on out-of-staters should count as an interstate externality that can justify federal intervention. The federal courts may be moving toward an even narrower conception of what constitutes an environmental externality that can justify federal regulatory intervention - a conception in which the externality must entail interstate market effects in addition to interstate physical effects. This Article argues that a significant set of the interstate effects of natural resource degradation and destruction on the American populace cannot plausibly be classified as either physical or market effects: some, perhaps many, Americans lose some sense of well-being simply by virtue of the loss of the existence of wetlands, waterways, and other natural resources in states where they do not live. Existence values (or more precisely, the desire to prevent the loss of existence values) provide a powerful positive account of how the federal political process, despite concerted opposition by wellorganized business interests, has at times come to restrict the degradation of natural spaces that few out-of-state residents are likely to ever visit or otherwise use. Existence values also provide a strong normative account of why such restrictions are, from a societal vantage, presumptively welfare-maximizing. Indeed, as explained in Part III of the Article, federal regulation is more likely to be necessary to maximize welfare in the context of interstate losses in existence value than in the context of interstate physical effects, such as air or water pollution crossing state lines. The principal claim of those who reject the use of existence values as a rationale for federal regulation is that existence values are nonmeasurable and hence unsuitable for consideration in public policy. As explored in Part IV of the Article, this empirical objection is inconsistent with the findings of contingent value (CV) surveys in which respondents have been asked how much they would be willing to pay for the preservation of one or more natural resources. The CV surveys completed to date, although admittedly imperfect as measurement devices, suggest significant values for the preservation of a range of natural resources. More important, the federal political process itself provides a comparative measure of the magnitude of the existence-value benefits of natural preservation (on the one hand) and the magnitude of the competing economic benefits associated with the degradation or destruction of natural settings (on the other). If anything, given the core insights of public choice theory and the structural supports in the federal political process for industries whose economic interests often run counter to natural preservation (e.g., the mining, timber, and oil industries), we should expect the federal political process to understate significantly the comparative magnitude of the existence-value benefits of natural preservation. The current literature also contains a non-empirical objection to existence values as a justification for federal regulation. The essence of this objection is that federal preservation regulation premised on existence value preferences is illegitimate because it violates the principles of respect for private property rights and distributive justice among communities. As explained in Part V of the Article, these principles, at best, support the claim that all sorts of government regulation - and not just federal regulation aimed at preserving natural resources - is illegitimate from a particular (and highly contestable) point of view. The normative defense of existence values and existence-value-driven regulation developed in Parts III-V provides a useful perspective from which to evaluate the current state of Commerce Clause doctrine. Commerce Clause doctrine has never formally recognized existence-value concerns as a basis for federal jurisdiction, and that is unlikely to change. However, certain doctrinal approaches to the Commerce Clause create room for regulation motivated by existence-value concerns, and others, such as the approach arguably endorsed by the majority in SWANCC, do not. If one accepts that federal regulation premised on existence-value concerns is presumptively welfare maximizing, then one must accept that Commerce Clause tests that preclude such regulation carry a substantial social cost. The normative defense of existence-value regulation also has implications for the choice between approaches to standing that facilitate citizen enforcement of regulations premised on existence-value concerns, and approaches, such as that endorsed by the majority in Lujan v. Defenders of Wildlife, that impede such enforcement.
This is an interesting paper. Here are a few random thoughts, intended as musings rather than criticisms:
  • Dana's approach has the virtue that it allows some consideration of existence values--which otherwise are left out of cost-benefit analysis altogether, but it also seems to fail to capture what is real about existence values. I take it that the real point is not the psychological effects of the existence of nature, but the intrinsic value.
  • But of course, assigning intrinsic value to unspoiled nature raises other problems. In particular, it may be difficult to articulate public reasons that express such intrinsic values. This raises a troubling point--if the real underlying values are not based in public reasons, then is it legitimate to count the derivative psychological expression of the underlying values for the purposes of cost-benefit analysis?
  • Existence values persis over time, raising familiar and troubling questions about discounting. Is it proper to apply a discount rate to future exsitence values? If the discount rate is even moderately high, then the future values count for virtually nothing. If not discount rate is applied, then they count for everything.
Download it while its hot!

Stout on the New Finance Lynn A. Stout (University of California, Los Angeles - School of Law) has posted The Mechanisms of Market Inefficiency: An Introduction to the New Finance on SSRN. Here is the abstract:
    During the 1970s and early 1980s, the Efficient Capital Market Hypothesis (ECMH) became one of the most widely-accepted and influential ideas in finance economics. More recently, however, the idea of market efficiency has fallen into disrepute as a result of market events and growing empirical evidence of inefficiencies. This Article argues that the weaknesses of efficient market theory are, and were, apparent from a careful inspection of its initial premises, including the presumptions of homogeneous investor expectations, effective arbitrage, and investor rationality. By the same token, a wide range of market phenomena inconsistent with the ECHM can be explained using market models that modify these three assumptions. In illustration, this Article explores three important strands of today's finance literature: (1) the expanding body of work on asset pricing when investors have heterogeneous expectations; (2) recent theoretical and empirical scholarship on how and why arbitrage may move certain types of publicly available information into price more slowly and incompletely than earlier writings suggested; and (3) the exploding literature in behavioral finance, which examines what happens to prices when market participants do not all share rational expectations. Taken together, these three bodies of work show signs of providing the essential framework on which can be built a new and more powerful working model of securities markets.

Korobkin on Form Contracts & Bounded Rationality Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted Bounded Rationality, Standard Form Contracts, and Unconscionability (University of Chicago Law Review, Vol. 70, p. 1203, 2003) on SSRN. Here is the abstract:
    Economic theory suggests that, in most circumstances, market forces will ensure that stan-dard form contracts contain terms that are not only socially efficient but also beneficial to non-drafting parties as a class compared to other possible combinations of price and terms. This analy-sis in turn suggests that courts should enforce all form terms or, at a minimum, all form terms that non-drafting parties read and understand. Relying on social science research on decisionmaking, this Article argues that non-drafting parties (usually buyers) are boundedly rational decisionmak-ers who will normally price only a limited number of product attributes as part of their purchase decision. When contract terms are not among these attributes, drafting parties will have a market incentive to include terms in their standard forms that favor themselves, whether or not such terms are efficient. Thus, there is no a priori reason to assume form contract terms will be efficient. The Article then argues that the proper policy response to this conclusion is greater use of mandatory contract terms and judicial modification of the unconscionability doctrine to better respond to the primary cause of contractual inefficiency.

Monday, December 29, 2003
Public Reasons and Faith-Based Prisons (Update: & Comments by Steve Smith) Over at Punishment Theory, there has been a very interesting exchange on faith-based prisons. (Start here and scroll up.) In this most recent posts, the discussion has turned to the question whether it is appropriate for legislators to support faith-based prisons for religious reasons. Rick Garnett's most recent post takes on this thorny issue:
    More important, though, is the point that the Constitution should not be read to require -- and, as Michael Perry has argued recently, liberal theory should not be understood to require -- religious citizens and legislators to avoid relying on religious reasons for supporting policy proposals. Instead, it would seem more consistent with the "equality" norms that Kyron and I both value to say that we should all openly and respectfully articulate and rely on those reasons that are most convincing to us, and see if our fellow citizens are persuaded.
Set aside the constitutional question for now. As a matter of political morality, ought we adhere to an ideal of public reason that would require that legislative action be supported in ways that appeal to common reason of all citizens? Or should our ideal of public reason be based on the principle of laissez-faire: let all reasons content in the market place of ideas?
When thinking about this question, I think it is important to be careful and precise. Some of the distinctions that we ought to observe include the following:
  • The ideal of public reason may differ by context. Reasons that are appropriate for ordinary citizens may be inappropriate for judges, and yet a different standard may apply to legislators. There may be a difference between things that legislators say off the floor, things they say on the floor, and things they include in official documents, such as preambles or committee reports.
  • The distinction between public and nonpublic reasons is not identical to the distinction between religious and secular reasons. For example, many secular reasons are rooted in comprehensive philosophical doctrines of the good, and therefore, are not public: utilitarians believe that only consequences count, but that belief, although secular, is not a public reason. In addition, some religious reasons express publicly shared values in well-understood religious language. "Thou shall not kill," expresses the value of the sanctity of human life--a public reason. That it is expressed in religious language does not necessarily mean that it should not count as a public reason.
  • An ideal of public reason can be either exclusive or inclusive. An exclusive ideal of public reason is based on the principle that reasons that are not public should be excluded from a particular sphere of discourse (e.g. public political debate, legislative debate, official legislative documents, court opinions, etc.). An inclusive ideal is based on the principle that public reasons should be included in public discourse, also in a particular sphere.
So, here are some questions for Rick Garnett:
    1. When you say "we should all openly and respectfully articulate and rely on those reasons that are most convincing to us," do you mean to articulate a principle of laissez-faire? (It sounds like you do?) Of do you mean instead to support an inclusive ideal of public reason?
    2. To which of the following contexts does your principle apply:
      a. citizens (including officials) in public political debate outside of "official contexts," b. legislators on the floor of the legislative chamber, c. official legislative documents, such as preambles to legislation or committee reports, and official executive documents, d. judicial opinions?
    3. When you say "those reasons that are most convincing to us," do you mean to include explicitly sectarian reasons and the deep and controversial premises of secular doctrines? For example, would it be appropriate to argue based on the authority of a particular religious text or religious teacher, or to argue from the authority of a particular secular exponent of a nonpublic secular doctrine?
    4. In particular, would the following be appropriate uses of nonpublic reasons--only insofar as your ideal of public reason is concerned:
      a. The inclusion in the preamble of a bill establishing a faith-based prison system of the following statement: "Whereas Christianity is the true religion and only Christian teaching can produce true rehabilitation of offenders."
      b. The inclusion of the following statement in a judicial opinion, "The legislature explicitly relied on Protestant Christianity as the reason for the passage of this bill. Were Protestantism the true faith, it would supply a rational basis for establishment of prisons that teach that doctrine. But Protestantism is a false doctrine, and therefore this legislation lacks a rational basis."
Of course, Garnett may prefer not to answer these questions. (After all, one of the great pleasures of the legal academy is that answering interrogatories becomes optional!) Nonetheless, I hope the questions themselves serve the purpose of demonstrating that there are no simple, clean-cut answers to the deep questions of political morality that are raised by ideals of public reason. Surf on over to punishment theory!
Update: My colleague, Steve Smith, writes re my questions for Garnett:
    Interesting questions. For myself, I'm quite skeptical of the whole idea of "public reason" as a device for restricting discourse. So my inclination would be to answer "yes" to your questions 1, 2, and 3. But this "laissez faire" view, as you put it, probably needs to be qualified in a couple of ways. First, we do recognize that in certain contexts the considerations or reasons we can appeal to are appropriately limited. Jurors are supposed to base their verdicts on the evidence, not on things they independently hear. etc. So the case of judges is interesting, because we say they're supposed to base their judgments on "the law," whatever that means. Stephen Carter has a nice essay on this point, in which he basically says (if I recall): If you favor legal positivism and if that's a viable position, then judges shouldn't rely on their own religious convictions. But if you're more with the realists, or Dworkin, or the Warren Court, etc., then there's no reasons to single out religious convictions for exclusion. The other qualification, I think, is that I believe it can be argued that we have a "nonsectarian" tradition, which I interpret to mean that government should justify its actions and decisions with reasons no more exclusive than necessary. This raises doubts about your fourth question, because I take that the answers you suggest, even if they were sincere in context, would be gratuitously narrow and exclusive. I'd use Jefferson's Virgina Bill as a model: it begins by saying "Almighty God hath created the mind free," etc. It could have said nothing religious, but then it would have failed to provide any plausible justification. conversely, it could have said, "Jesus Christ . . .", and it's conceivable that a majority of Virginians might have preferred this, but this language would have been unnecessarily exclusive. "Almighty God" struck the right note of inclusiveness.

Weekend Wrap Up On Saturday, the Download of the Week was Plea Bargaining Outside the Shadow of Trial by Stephanos Bibas, and the Legal Theory Bookworm recommended a collection of essays by Jeremy Waldron. Sunday's Legal Theory Calendar previewed the start of three important conferences, the Annual Meeting of the Association of American Law Schools, the Faculty Division of the Federalist Society, and the American Society for Political and Legal Philosophy. Also on Sunday, the Legal Theory Lexicon entry was on Positive and Normative Legal Theory.

Allen and Mace on the Privilege Against Self-Incrimination The privilege against self-incrimination has long defied attempts at theoretical explanation. So, I was especially intrigued to see that Ronald J. Allen and M. Kristin Mace (Northwestern University Law School and Independent) have posted The Self-Incrimination Clause Explained and Its Future Predicted (Journal of Criminal Law and Criminology, 2003) on SSRN. Allen is, of course, one of our most eminent theorists of the law of evidence. Here is the abstract:
    Like many areas of the law, the Fifth Amendment has defied theoretical explanation by scholars. We examine whether the fifth amendment cases can be explained with a relatively simply theory, and find that they can. The key to that theory is the recognition that, although never acknowledged by the Court, its cases make plain that "testimony" is the substantive content of cognition - the propositions with truth-value that people hold or generate (as distinct from the ability to hold or generate propositions with truth-value). This observation leads to a comprehensive positive theory of the Fifth Amendment right: the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action. As we demonstrate in this article, this theory explains all of the cases, a feat not accomplished under any other scholarly or judicial theory; it even explains the most obvious datum that might be advanced against it - the sixth birthday question in Muniz. There remain two sources of ambiguity in Fifth Amendment adjudications. First, compulsion and incrimination are both continuous variables - questions of degree. The Court has recognized this and set about defining the amount of compulsion and incrimination necessary to a Fifth Amendment violation. The result is a common law of both topics rather than a precise metric of either. These two variables are independent and do not interact, which reduces the complexity of decision making. Compulsion, in other words, is in no way determined by the extent to which the results are incriminating. Compulsion is determined on its own, as is the sufficiency of incrimination. The second source of ambiguity arises from the Court not explicitly equating "testimony" with cognition, though that is precisely what has controlled its decisions. Given that the Court's opinions have not focused on substantive cognition as the third element of a Fifth Amendment violation, it is not surprising that the Court has not clarified whether cognition, too, is a continuous or discontinuous variable. This is where the future lies. The Court will have to clarify two matters: first, whether the extent of cognition matters, and second, the derivative consequences of cognition. In addition, the Court will have to determine whether these two issues are, like compulsion and incrimination, independent. Does the extensiveness of the compelled cognition determine how far its causal effect will be traced? We then note that this "theory" does not look like a standard academic theory with its attendant emphasis on normative analysis. We examine whether the normal meaning of "normative justification" is a very useful one in any field of law with the range of the fifth amendment, point out that it is quite similar to the fourth amendment in this regard, and that scholarly efforts to discover its "true" justification may be doomed to failure. This does not mean that fields of law are unjustified, but perhaps that the justification must come in other terms. The terms plainly applicable to these two areas are the traditional ones of the rule of law. The Court has strived to make sense of ambiguous directives through creating and sustaining relatively clear legal categories and by responding to new situations through analogies to prior cases. We think it plausible that, however dull this may appear to the legal theorist, the legal system may be better off as a result. The article thus adds to the growing literature concerning the nature of legal theorizing by demonstrating yet another area where legal theorizing in its modern conventional sense (involving the search for the moral or philosophical theory that justifies an area of law) has been completely ineffectual, whereas explanations that are informed by the presently neglected values of legality (clarity, precision, consistency, fidelity to authority) have considerable promise.
No normative theory, it appears. Does the positive theory work? The key concept is obviously the equation of "testimony" with the content of cognition, as this passage from the paper makes clear: "In the cases, 'testimony' means substantive cognition, the product of cognition that results in holding or asserting propositions with truth-value." (26) But in the following paragraph, the definition of cognition is formulated just a bit differently: "Cognition 'involves the acquisition, storage, retrieval, and use of knowledge.' We use the term to refer to these intellectual processes that allow one to gain and make use of substantive knowledge and to compare one's 'inner world' (previous knowledge) with the 'outside world' (including stimuli, such as a question from an interrogator)." (26) I would think that the use of the term "knowledge" must be an unintended error. Defining "knowledge" is a tricky business, but almost everyone agrees that "knowledge" must be true belief--e.g. the common equation of knowledge with justified true belief. But compelled disclosure of the content of false beliefs would surely be a violation of the privilege for Allen and Mace. So perhaps, Allen and Mace actually meant something like: "Cognition involves the acquisition, storage, retrieval, and use of belief." Of course, not all all evidence of cognition is excluded by the privilege: as Allen and Mace state, "It is important to note that state action is required to trigger both the cognition and the disclosure of the results." I haven't really thought this through, but here is one interesting implication of their view: The contents of belief can frequently be inferred from actions. A simple example is the demeanor of a suspect in custody. According to the Allen/Mace theory, if demeanor gives rise to an inference about the suspects beliefs (or knowledge), then "testimony" has occurred. Of course, this does not mean that either the inferences or their fruit are proscribed by the privilege--that conclusion cannot be reached until we conclude that the "testimony" is the produce of "coercion." A very interesting paper. Highly recommended.

Edmundson on Privacy William A. Edmundson (Georgia State Law School) has posted Privacy (THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Martin P. Golding, William A, Edmundson, eds., Oxford: Blackwell Publishing, April 2004) on SSRN. Here is the abstract:
    This essay concerns privacy as a moral right, and as a candidate for protection as a positive legal or constitutional right. It discusses the threefold distinction between what have been termed physical, informational, and decisional privacy rights, and then briefly surveys the efforts to provide a unified theory of privacy in its varying manifestations. The central section of the essay explores the relation between decisional privacy rights and the right to liberty - a relation whose importance is emphasized in the recent decision of the U.S. Supreme Court in Lawrence v. Texas, 123 S.Ct. 2472 (2003). Unlike liberty in the sense of a moral permission to engage in conduct of a given type, decisional privacy is best understood as a right to do wrong - or, more precisely, to do what society, or the legislature, may correctly or incorrectly perceive to be wrong. As such, decisional privacy raises vexing questions about the place of rights in moral and political theory. The essay concludes by suggesting that constitutional privacy might better be conceived in terms of informational privacy rights grounded on individual dignity than in terms of liberty as a decisional privacy right.

Greenberg on Deconstructing Binary Race & Sex Categories Julie A. Greenberg (Thomas Jefferson School of Law) has posted Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and Transgendered Experience (San Diego Law Review, Vol. 39, p. 917, 2002) on SSRN. Here is the abstract:
    Millions of people are multiracial and cannot be classified as being of one distinct race. Similarly, millions of people are transgendered and cannot easily be categorized as either male or female. Racial classification systems have existed for centuries and have been the subject of extensive commentary and critique for decades. Sex and gender classification systems, on the other hand, just started to become the subject of litigation in the last half of the twentieth century and it is only during the last decade that sex classification systems have become the topic of extensive scholarly discussion. Race and sex classification systems originally were based upon two assumptions: (1) race and sex are binary; and (2) race and sex can be biologically determined. Racial categorization has moved away from these two simplistic assumptions. Most scholars and legal institutions now agree that race cannot be defined by biological factors and that race has been socially constructed. Sex classification systems, on the other hand, are still primarily based on the assumptions that sex is binary, unambiguous, and can be biologically determined, despite scientific research that indicates that none of these assumptions is completely accurate. An understanding of the issues that have arisen under a binary racial classification system may assist legal institutions and gender scholars and activists as they seek to understand and modify the current sex classification system. This article explores whether some of the major issues being discussed by race scholars engaged in the "multiracial" category debate should be considered by legal institutions and scholars as they analyze the effect of binary sex/gender classification systems on sexual minorities.

MacKinnon and Siegel's New Anthology on Sexual Harassment Catharine A. MacKinnon and Reva Siegel (University of Michigan Law School and Yale Law School) have posted Directions in Sexual Harassment Law: Introduction and Afterword (DIRECTIONS IN SEXUAL HARASSMENT LAW, Catharine A. MacKinnon and Reva B. Siegel, eds., Yale Press, 2004) on SSRN. Here is the abstract:
    In Directions in Sexual Harassment Law, 38 authors explore the past and future development of the field, with an introduction by Reva Siegel and an afterword by Catharine MacKinnon, the volume's co-editors. Siegel opens the collection with "A Short History of Sexual Harassment," which recounts striking changes in the practice and protest of sexual harassment in the past and in our own day. She analyzes legal recognition of sexual harassment as sex discrimination, treating it as an important chapter in this history that reveals much about the ways antidiscrimination law enables and limits challenges to the social world of which it is a part. MacKinnon closes the book with an assessment of the changes wrought by sexual harassment law in the quarter century since she argued for legal recognition of the claim in Sexual Harassment of Working Women (1979). Anchoring her analysis in the national debates spanning the Thomas-Hill hearings and the Clinton impeachment, MacKinnon charts the norms and practices this body of law has transformed, as well as the entrenched understandings and arrangements that it has yet to disturb. (Siegel's and MacKinnon's essays are posted with this abstract.) Directions in Sexual Harassment Law will be published by Yale University Press in January of 2004. Its 37 essays are grouped in seven parts. In Part I, Contexts, Andrea Dworkin, Guido Calabresi, Anne Simon, Pamela Price, and Gerald Torres offer brief observations on the law's role in addressing sexual harassment. In Part II, Unwelcomeness, Carol Sanger, Louise Fitzgerald, Kathy Abrams, Jane Larson, and Robin West analyze the role of notions of consent in sexual harassment law and theory. In Part III, Same-Sex Harassment, William Eskridge, Katherine Franke, Janet Halley, Marc Spindelman, and Chris Kendall debate the relation of gender and sexuality and the role of law in regulating sexual relations and redressing sexual injury. In Part IV, Accountability, Judith Resnik, David Oppenheimer, Deborah Rhode, Ann Scales, and Cass Sunstein & Judy Shih explore questions of institutional responsibility for sexual harassment in both the employment and education settings. Part V, Speech, considers how, if at all, law ought take account of speech values in the ways it defines and regulates sexual harassment, in essays by Frederick Schauer, Dorothy Roberts, Robert Post, Kingsley Browne, Janine Benedet, and Jack Balkin. In Part VI, Extensions, Adrienne Davis, Tanya Kateri Hernandez, Lea VanderVelde, Sally Goldfarb, and Diane Rosenfeld trace the life of the sexual harassment paradigm in other legal contexts. Part VII, Transnational Perspectives, considers sexual harassment law in comparative perspective. Orit Kamir, Susanne Baer, Abigail Saguy, Yukiko Tsunoda, Martha Nussbaum, and Christine Chinkin respectively analyze sexual harassment law in Israel, Germany, France, Japan, India, and under international human rights law.

Sunday, December 28, 2003
Legal Theory Lexicon: Positive and Normative Legal Theory
    Introduction One of the most fundamental distinctions in legal theory is that between "positive legal theory" and "normative legal theory." This post provides a very brief introduction to the distinction, aimed at law students (especially first years) with an interest in legal theory.
    The core idea of the distinction between positive and normative legal theory is simple: positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be. Thus, a positive theory of tort law might seek to explain what causal forces have produced the existing principles of tort law, whereas a normative theory of tort law would tell us what rules of tort liability would be best, right, or justifiable. Or more simply: positive legal theories are about facts and normative legal theories are about values.
    Positive Legal Theory Sometimes, the notion of positive legal theory is presented in an oversimplified way--as if there were a single, well-defined type of theory that counted as positive. In fact, the phrase "positive legal theory" is used in a variety of ways. The one thing that positive legal theories have in common is that they are not normative. Nonetheless, there are three characteristic type of positive legal theory that can be identified:
      Positive Legal Theory Type 1: Doctrinal Theories--The first kind of legal theory that is called "positive" is quite simply a theory of what the content of a particular field of legal doctrine is. Thus, a theory of the freedom of speech might simply seek to explain the shape of existing first amendment doctrine. Or a theory of hearsay rule might seek to provide an account of the rule and exceptions that explains and accurately predicts particular applications of the rule. Doctrinal legal theories are responsive to questions like, "What are the principles that shape this area of the law?" or "Can these cases be explained by some underlying theory?"
      Positive Legal Theory Type 2: Explanatory Theories--The second kind of legal theory to which the label "positive" is applied are explanatory theories--theories about why the law is the way it is. For example, a very simple Marxist theory might state that the content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules.
      Positive Legal Theory Type 3: Effects Theories--The third kind of legal theories that are referred to as "positive" are theories about the consequences that will be produced by a given regime of legal rules. This is the sense of "positive theory" that is most frequently invoked by legal economists. The question --"What effects will a strict liability regime (as opposed to a negligence) regime have on the manufacturers of consumer products?"--can be answered by a legal theory that is positive in the sense that it predicts behavior but does not explicitly evaluate the desirability of the rule.
    Normative Legal Theory Normative legal theories, on the other hand, are by their nature evaluative. Thus, a normative theory of products liability law would take a stand on the question whether negligence or strict liability is the better rule. Normative legal theories tend to be entwined with more general normative theories, e.g. moral or political theories, although this is not necessarily the case. The Legal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most important general normative theories that have had an influence on the law. There are two other distinctions that are important to understanding the general idea of a normative legal theory:
      Ideal versus Nonideal Theory Some normative legal theories are "ideal"--that is, they are theories about what the best legal rule would be in the world in which everything was politically possible, the law could be adequately enforced, and other legal rules that interact with the subject of the theory could be adjusted to produce the best overall system. Other normative legal theories are "nonideal"--that is, they are theories that assume a variety of constraints on the choice of legal rules. For example, a nonideal theory might take into account political feasibility or it might take into account the possibility that the system would not provide an optimal level of enforcement for the rule that would otherwise be best. The Legal Theory Lexicon entry on second best explores these ideas in greater detail.
      Justificatory Theories and Critical Theories Normative legal theories also vary in their "attitude" towards the status quo. You are likely to encounter normative legal theories that start with the question, "What is the best justification that be given for such and such a legal rule?" These justificatory theories have a limited purpose. They do not address the ultimate question, "What is the best legal rule?" On the other hand, many legal theories have the opposite purpose--the critique of existing legal doctrine. Thus, a critical theory might enumerate all of the criticisms that could be made of an existing legal rule--even though some of the criticisms may rest on inconsistent premises.
    The Intersection of Positive and Normative Theory So far, we have been assuming a fairly sharp distinction between positive and normative legal theory. And for many purposes, assuming that there is a bright line that separates normative and descriptive legal theory is a good working hypothesis. Even assuming there is such a bright line, however, there are relationships between positive and normative legal theories.
      Positive Theory in the Service of Normative Theory One relationship is clear and straightforward. Many normative theories underdetermine what the legal rules should be in the absence of substantial information about the effects of the rules. This is most obvious in the case of utilitarian theories, where information about consequences does all the real work of determining which legal rule is best. For normative theories like utilitarianism, positive theory performs an essential service. Without a positive account of the effects of a given rule choice, utilitarianism has nothing to say about what rule is best.
      Positive Theory as a Constraint on Normative Theory Another relatively noncontroversial relationship between positive and normative legal theories arises when a positive theory that explains why the law has the shape that it does, is taken as imposing a constraint on normative theory. For example, public choice theory makes certain predictions about how legislatures will act in response to various incentives. Some legal rules that might be justified by ideal normative legal theory may be considered "unrealistic" in light of positive theory. In cases like this, positive legal theory provides constraints that limit the options available to normative theory.
      Interpretivism and "Law as Integrity" There is another, more controversial, way that positive and normative legal theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to combine the aims of positive doctrinal theory and normative theory. The idea is that a legal theory should both fit and justify the existing legal landscape. Thus, a Dworkinian theory of the freedom of speech would need to both fit the contours of the Supreme Court's decisions and justify those decisions. Of those interpretations of free speech doctrine that fit the legal topography, Dworkin maintains that judges should select that interpretation that makes the existing law, "the best that it can be." Dworkin's view of legal theory blurs the line between positive and normative legal theory--essentially combining the enterprises that I have called positive doctrinal theory and justificatory normative theory. As you might imagine, this is hugely controversial--although that is a topic for another post.
    Conclusion The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both. One of the oft-repeated questions that law professors ask of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or normative. Be sure you know the answer before the question is asked!
    For a complete collection of all the Legal Theory Lexicon posts with a table of contents, go here.

Legal Theory Calendar

Saturday, December 27, 2003
Finding Nemo Torts Hypo Here by Wu!

WSIS My general impression has been that WSIS (the UN/ITU sponsored event on the "Information Society") hasn't produced much of value. For the IP Justice take on WSIS, go here.

Ito & Seltzer on Blogging & Privacy Joi Ito posted the following:
    How many people who blog know that many blogs automatically send trackbacks or send pings to pingers sites like ... One of the problems of using the "big time bloggers" to design the technology is that we often forget that many people would rather NOT have their contexts collapsed.
And Wendy Seltzer has some thoughtful things to say in reply, starting with:
    We early adopters know how referer logs work; we know that Google and the Internet Archive (and a host of less benign others we don't know) can keep their argus eyes on everything we do. We know how to write .htaccess files, or at least whom to ask for something similar, if we want better (though still not total) privacy. We've internalized the norm that conduct not marked private is public.

More on Faith-Based Prisons Check out these posts by Rick Garnett and Kyron Huigens over at Punishment Theory.
Update: And more from Southern Appeal and Will Baude.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends Jeremy Waldron's Law and Disagreement--a collection of 13 essays by one of the most thoughtful and interesting thinkers in the legal academy. Here is a passage that I particularly liked:
    Max Radin once wrote that it is the job of a legislature to pass statutes not form intentions. A legislature is an artificial actor, and the passage of a statute is its action: indeed we refer to statutes as acts of Congress or Parliament or whatever. But though we use the language of agency in this way, we must not be misled by an obsessive analogy with the actions of natural persons into searching for a legislative equivalent for every event or state associated with action in the psychology of individual agents. Few would say, for example, that legislatures (as opposed to particular legislators) have motives as well as intentions associated with particular acts; few would be willing to put the kind of weight on the motive/intention distinction that we apply in the individual case. So why insist on a correlate for intention at all? Why not simply say that the act of a legislature is an artificial resultant of the acts of individual legislators, structured and related to one another through certain procedures, decision-functions and perhaps machines? Why not say that while each of the latter actions--the individual actions--is of course the product of an intention, the resultant action--the act of the legislature itself--need not be.

Download of the Week This week, the Download of the Week is Plea Bargaining Outside the Shadow of Trial (Harvard Law Review, June 2004) by Stephanos Bibas (University of Iowa - College of Law). Here is the abstract:
    Plea-bargaining literature predicts that parties strike plea bargains in the shadows of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes, causing them to diverge from trial outcomes. Part I of this Article explores the various structural forces that warp plea bargains. Agency costs, attorney compensation and workloads, resources, sentencing and bail rules, and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments. Part II applies recent research from behavioral law and economics and cognitive psychology to critique plea bargaining. Overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems, but they can also overcompensate. The oversimplified shadow-of-trial model of plea bargaining needs to be supplemented by a structural-psychological perspective. On this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Part III explores how to respond to the various structural and psychological influences that warp plea bargains. Reforming systems of defense counsel, bail rules, and the structure of sentencing rules, and increasing use of mediators and judges in bargaining could ameliorate some of these influences. Other problems, such as demographic variations in psychology, are very difficult to correct. These influences cast light on how civil and criminal bargaining differ in important respects.
Download it while its hot!

Friday, December 26, 2003
Why Hasn't the MPAA pursued the RIAA's litigation strategy? Check out this post on Furdlog.

Welcome to the Blogosphere . . . to John Perry Barlow's BarlowFriendz.

Buck on the International Criminal Court Here.

Green on Establishment of Religion in Prisons Over at Punishment Theory, Stuart Green has a nice post on establishment of religion in prisons.

Four Michigan Law School Blogs I've been very impressed with Glorfindel of Gondolin, Silent Treatment, Letters of Marque, and Think Inc.. I've been slow in catching up with these law student blogs, so I hope its not too late to say "Welcome to the Blogosphere!"

Birnhack and Rowbottom on Protecting Children from Harmful Material on the Internet Michael Birnhack and Jacob H. Rowbottom (University of Haifa - Faculty of Law and Independent) have posted Shielding Children: The European Way (Chicago-Kent Law Review, Vol. 79) on SSRN. Here is the abstract:
    The Internet crosses physical borders, and carries with it both its promises and its harms to many different countries and societies. These countries thus share the same technology, but they do not necessarily share the same set of values or legal system. This paper compares the legal response in the United States and in Europe to one important issue: the exposure of children to certain materials, which are deemed harmful to them but not harmful to adults. This US-European comparison, in which the experience in the United Kingdom serves as a leading example, illustrates the traits of various kinds of regulation of the new media: public ordering (direct and indirect), private ordering, and ordering by code, i.e., by technological means. We examine the various kinds of regulation and their constitutional meaning. The US opted mostly for a direct legal attack on the material which is harmful to children, an approach which thus far, failed the judicial test, due to the limitations it imposes on freedom of speech of adults. While the European framework allows greater balancing between expression rights and competing interests, the European response has not been to follow the direct restrictions attempted in the US. Instead, accepting the practical difficulties of enforcing direct restrictions, the emerging legal response in European countries has been a market-based solution, guided by a legal framework that fosters self-regulation. The article considers the reasons for adopting the approach of self-regulation and the impact that such methods of control have on freedom of expression. In particular, examining the relationship of such controls with the communitarian approach advocated by professor Amitai Etzioni.

Bibas on Ineffective Assistance of Counsel Stephanos Bibas (University of Iowa - College of Law) has posted The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel (Utah Law Review, March 2004) on SSRN. Here is the abstract:
    Strickland v. Washington tries to guarantee criminal defendants effective assistance of counsel by individually reviewing each defense lawyer's performance after-the-fact. Despite much terrible lawyering, courts rarely reverse convictions. Why? Behavioral psychology provides a key insight: Judges have difficulty reviewing individual lawyers' performance in hindsight. While the Supreme Court and some commentators have worried about the dangers of Monday-morning quarterbacking and 20/20 hindsight, they have overlooked the greater danger that in retrospect, convictions appear inevitable. Psychologists call this the inevitability or confirmatory bias. Strickland's vagueness and its refusal to lay down more specific guidelines for counsel exacerbate this problem by leaving plenty of room for the inevitability bias. The poor records surrounding guilty pleas further exacerbate the problem. The better solution is to move from case-by-case retrospective review to prospective efforts to improve indigent-defender systems, whether through structural-reform litigation or legislative change.

Conference Reminder: American Society for Political and Legal Philosophy If you will be attending the AALS meeting in Atlanta next week, remember that the American Society for Political and Legal Philosophy holds its meeting on January 2 & 3. Here is the scoop: American Society for Political and Legal Philosophy 50th Annual Meeting Toleration and Its Limits Atlanta, January 2-3, 2004 Hilton Atlanta/ Atlanta Marriot Marquis Friday, January 2
      Panel I. Toleration and Liberalism 4:30-6:30 pm
          Steven Smith, University of San Diego Law School "Toleration and Liberal Commitments"
          Glyn Morgan, Harvard University Rainer Forst, University of Frankfurt
          Melissa Williams, University of Toronto
      Reception 6:30-8:30 pm
    Saturday, January 3
      Breakfast Reception 8:00-8:30 am Panel II. Toleration as a Virtue 8:30-10:15 am
          David Heyd, Hebrew University of Jerusalem "Is Toleration a Political Virtue?"
          Kathryn Abrams, Boalt Hall School of Law, Unversity of California at Berkeley Andy Sabl, University of California at Los Angeles Chair: Jeremy Waldron, Columbia University
      Panel III. Toleration and Recognition
        10:30 am-12:00 noon Paper:
          Ingrid Creppell, George Washington University "Toleration, Politics and the Common World"
          Glen Newey, University of Strathclyde, Glasgow Noah Feldman, New York University
          Jacob Levy, University of Chicago
    The ASPLP meeting is usually one of the most important events of the year in legal theory. See you there!

Thursday, December 25, 2003
Best Wishes from Legal Theory Blog In this holiday season, I would like to send my very best wishes to all the readers of Legal Theory Blog.

Levy on Deflating Morality Neil Levy has posted Deflating Morality. Here is an excerpt:
    It is the purpose of this paper to explore the possible threats posed to morality from developments in cognitive science, evolutionary theory and psychology. The threats I shall consider have developed separately, and are motivated by different concerns, but they each pose a similar problem for morality: they apparently show that our that our moral beliefs and intuitions are the product of mechanisms which are not plausibly taken to track moral concerns. If this is the case, then (it seems) we have little reason to think that central parts of morality, perhaps the whole show, is anything more than a systematic illusion. Investigation of our cognitive mechanisms might show us to be in the grip of a massive collection delusion.

Broome's Brown-Blackwell Lectures You can download John Broome's Brown-Blackwell Lectures in three parts: Lecture 1: Rationality; Lecture 2: Theoretical reasoning; and Lecture 3: Practical reasoning. Here is a tiny taste from the marvelous third lecture:
    I find practical reasoning a much more difficult subject than I originally thought it was. I’m sorry to say I can only just touch the beginning of it. There is so much to be done. For example, I need in the end to give a proper account of normative practical reasoning, which can bring you to satisfy the requirement of rationality (5). This must be reasoning that takes you from believing you ought to F to intending to F. I have already said you must be able to reason by saying to yourself;
    I ought to F
    So, I shall F.
    But there are many problems over this, and I cannot deal with them today. Instead, I am going to concentrate instrumental reasoning. Moreover, on a very special kind of instrumental reasoning: reasoning from an end to a means that you believe is necessary. This kind of reasoning should bring you to satisfy requirement (4). Of all types of practical reasoning, this type must surely be the easiest to understand. But it’s hard enough, and you will see that I do not feel secure with the account I have of it.

Dinwoodie & Dreyfuss on Preserving the Public Domain of Science Graeme B Dinwoodie (Chicago-Kent College of Law) and Rochelle Cooper Dreyfuss (New York University School of Law) have posted Preserving the Public Domain of Science Under International Law on SSRN. Here is the abstract:
    At the time the TRIPS Agreement was negotiated, the main focus of attention was on codifying then agreed-upon norms of protection. As a result, the Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address whether - and how - the TRIPS Agreement can, however, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the dynamic nature of information production. To focus that inquiry, we concentrate on efforts in US patent law to ensure a broader public domain for "upstream" inventions. The expansion of patentable subject matter to include upstream inventions has worried observers, leading some to suggest that other elements of patent law must be modified in order to re-create public-domain space in which work can be undertaken in accordance with traditional scientific norms. Because possible modifications would contract protection, they arguably raise TRIPS-compliance concerns, and bring into question the resilience of the Agreement. Considering all of these modifications would allow us to fully probe the provisions of the TRIPS Agreement to see which are most hospitable to protecting the public domain of science. In this paper, however, we look at only three stylized examples. These are (1) excluding certain discoveries from the subject matter of eligible patent protection; (2) creating a statutory exemption that gives courts discretion to permit unauthorized uses of sufficient social significance; and (3) varying the right to relief. The paper asks whether each approach could be adopted by the United States without falling afoul of the TRIPS Agreement as it is currently understood. Our purpose is not to predict the outcome of future disputes - there are far too few precedents for that. Rather, our goal is to identify interpretive approaches that allow member states to keep their laws attuned to the developments and needs of science. We conclude that a reform seeking to preserve the scientific public domain should pass muster under WTO dispute settlement scrutiny, but that it would have a greater chance of doing so if framed as an exemption from liability for infringement than as a subject matter exclusion. In our view, a targeted exemption (e.g., permitting specified uses) appears less susceptible to challenge than an open-ended exemption (like a fair use defense) that affords courts discretion. Varying the right to relief should also be TRIPS-compatible. Although the inclusion of provisions requiring effective enforcement of intellectual property rights was a crucial advance made by the TRIPS Agreement, there are substantial ambiguities (and some intentional vagueness) in those provisions. We view choices regarding remedies as directly implicating national authority; indeed, the ambiguity and vagueness might reflect the view that WTO members should be afforded substantial autonomy on precise questions of relief provided effective enforcement is available. We also raise broader questions regarding the level of formalism generated by the WTO dispute settlement system, and the extent to which the TRIPS Agreement allocates power between supranational and national institutions, between international and national laws. This allocation might be regarded as a form of neo-federalism; we argue that the content of this form of devolution should reflect the principles and concepts underlying not just the TRIPS Agreement, but the system of international intellectual property law as a whole.

Wednesday, December 24, 2003
Posner on Same Sex Marriage Judge Posner has some typically illuminating thoughts about same-sex marriage here. I particularly like the following passage:
    Judges like to pretend that their decisions are dictated by "logic," or by an authoritative text or precedent, because it downplays the element of judicial discretion, which worries people. The pretense wears particularly thin in constitutional cases about marriage and sex, because the Constitution does not say anything about these subjects, and the framers of the Constitution, and of the major amendments, in particular the Fourteenth Amendment, which is the principal source of constitutional rights against the states, were not thinking about marriage, sex, homosexuality, or related topics when they drafted these founding documents. (Neither were the ratifiers.) Decisions such as the four that I have mentioned, together with the Supreme Court's other well-known sex-related decisions, such as Griswold v. Connecticut (holding that a state cannot forbid married couples to use contraceptives) and Roe v. Wade, are all "political" decisions--not in the narrow Democratic versus Republican sense, but in the sense of being motivated by values not dictated by the orthodox materials of judicial decision-making. Precedent and analogy operate as fig leaves in such cases. So we have to dig much deeper to answer the question whether there should be a constitutional right of homosexual marriage. We have to consider why homosexuals want the right, what the consequences of giving it to them might be, why the right is so strongly opposed by the public, and whether the Supreme Court is the proper institution to authorize homosexual marriage.
As the readers of legal theory blog will know, the high esteem in which I regard Judge Posner is counterbalanced with my almost complete disagreement with his theory of judging. But one cannot help but admire his frankness and intelligence! Link courtesy of the The Right Coast.

Appell on Randall Kennedy Annette Appell (University of Nevada, Las Vegas - William S. Boyd School of Law) has posted Disposable Mothers, Deployable Children (Review Essay) (Michigan Journal of Race & Law, Vol. 9, 2004) on SSRN. Here is the abstract:
    This essay reviews Randall Kennedy's Interracial Intimacies (2003), a book that explores African American-white interracial adult-adult relationships and African American- and Native American-white adult-child relationships. For Kennedy, such relationships reflect and promote racial liberty or justice. The paper praises the book for highlighting the arbitrariness and destructiveness of racial classifications, but criticizes it for cloaking in terms of racial liberty what is essentially a conservative narrative about race and poverty that limits socioeconomic and racial mobility. The essay explores how the book fails to take into account fallacies of race neutrality and important distinctions between youth and adults, private and public family law systems, men and women, and adoptive and birth families. The essay first outlines the content and structure of the book and then explores the larger contexts the book ignores. Paying particular attention to Kennedy's portrayal of transracial adoption, the paper shows how his depiction and promotion of such adoption fails to account for the needs and experiences of children, masks institutional racism in, and affecting, the child welfare system, and reflects a white supremacist, patriarchal social agenda that seeks to limit the ability of poor women of color to bear and raise children.

Bayne and Kolers offer a Pluralist Account of Parenthood Tim Bayne and Avery Kolers (Macquarie University - Department of Philosophy and University of Louisville - Philosophy Department) have posted Toward a Pluralist Account of Parenthood (Bioethics, Vol. 17, pp. 221-242, June 2003) on SSRN. Here is the abstract:
    What is it that makes someone a parent? Many writers - call them 'monists'- claim that parenthood is grounded solely in one essential feature that is both necessary and sufficient for someone's being a parent. We reject not only monism but also 'necessity' views, in which some specific feature is necessary but not also sufficient for parenthood. Our argument supports what we call 'pluralism', the view that any one of several kinds of relationship is sufficient for parenthood. We begin by challenging monistic versions of gestationalism, the view that gestation uniquely grounds parenthood. Monistic and necessity gestationalism are implausible. First, we raise the 'paternity problem'- necessity gestationalists lack an adequate account of how men become fathers. Second, the positive arguments that necessity gestationalists give are not compelling. However, although gestation may not be a necessary condition for parenthood, there is good reason to think that it is sufficient. After further rebutting an 'intentionalist' account of parenthood, in which having and acting on intentions to procreate and rear is necessary for parenthood, we end by sketching a pluralist picture of the nature of parenthood, rooted in causation, on which gestation, direct genetic derivation, extended custody, and even, sometimes, intentions, may be individually sufficient for parenthood.

Hirsch on Abrogation of State Sovereign Immunity Pursuant to the War Power Jeffrey M. Hirsch (National Labor Relations Board, Appellate Court Branch) has posted Can Congress Use Its War Powers to Protect Military Employees from State Sovereign Immunity? (Seton Hall Law Review, Vol. 34, Spring 2004) on SSRN. Here is the abstract:
    The need to attract and keep soldiers has never been greater, yet that necessity is threatened by the Supreme Court's burgeoning state sovereign immunity jurisprudence. Congress has sought to promote military service in the Uniformed Services Employment and Reemployment Act (USERRA), which protects soldiers from adverse employment actions based on their military status. Although USERRA is clearly intended to apply to state employers, the Court's dicta that Congress cannot abrogate state sovereign immunity under Article I of the Constitution appear to emasculate that aim. This article, however, argues that the Court's recent holdings show that USERRA's abrogation, enacted pursuant to Congress's war powers, is an exception to the general prohibition against abrogation under Article I. The validity of war powers abrogation is supported by the historical importance of a unified national defense - well recognized during the plan of the constitutional convention and by the Court itself - which reveals that the states did not expect to possess immunity where the federal government exercises its war powers. This issue is important, for, as this article details, few suitable alternatives exist for military personnel who are deprived of their USERRA rights by state employers. Indeed, unless war abrogation is upheld, or Congress acts to secure conditional waivers of state immunity, military employees in only a few states will have the level of protection deemed necessary by Congress.

Nance & Morris on Jury Understanding of DNA Evidence Dale A. Nance and Scott B. Morris (Case Western Reserve University - School of Law and Illinois Institute of Technology - Institute of Psychology) have posted Jury Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random Match Probability on SSRN. Here is the abstract:
    In cases involving scientific evidence in the form of a test result linking the accused to a crime (e.g., DNA match), expert testimony sometimes can also provide a suitably reliable estimate of the chance of a coincidental match (the random match probability). Considerable controversy, however, attends the question of whether to allow testimony reporting that probability and, if so, in what form it should be given. Additional and related controversy concerns the implications of proficiency test results for testimony about the chance of false positive lab error, especially when that figure greatly exceeds the random match probability. This paper reports a large scale empirical study, using members of an Illinois jury pool, designed to contribute to our understanding of the issues involved. Our results confirm earlier research suggesting that jurors, rather than being credulously overwhelmed by the science, tend to undervalue forensic match evidence. On the other hand, our results differ from most prior research in showing that variation in the way the random match probability is presented and explained can reduce the extent of the undervaluation, without at the same time inviting inferential fallacies that would exaggerate the probative value of the match. And contrary to predictions, our results also show that incorporating information about comparatively large lab error rates, when it has any discernible effect, actually increases the jurors' assessed probability of guilt and willingness to convict.

Tuesday, December 23, 2003
Welcome to the Blogosphere . . . to 110 West 3rd (The adventures of Huey, Dewey & Puddles @ New York University School of Law).

Rappaport on Sunstein Over at The Right Coast, Michael Rappaport responds to Cass Sunstein's op/ed in the Washington Post entitled In Court v. Congress, Justices Concede One.

Muller on Padilla & Gherebi Eric Muller has a thoughtful post on Padilla and Gherebi on Is That Legal?. For my money, these two decisions are an unqualified victory for the rule of law.

Choice, Responsibility, and the Iraqi People Read Chris Bertram's four quotations on choice & responsisiblity over at Crooked Timber.

Get Your Hasen Now Election-law superblogger Rick Hasen's new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), has almost sold out of its first press run. You can still get a copy of this excellent book from or Barnes & Noble (20% discount). Highly recommended.

Georgakopoulos on Judicial Recalls Nicholas L. Georgakopoulos (Indiana University School of Law - Indianapolis) has posted Judicial Reaction to Change: The California Supreme Court Around the 1986 Elections (Cornell Journal of Law and Public Policy, Forthcoming). Here is the abstract:
    After an unsuccessful attempt in 1982, the California electorate removed three of the Justices of the Supreme Court of California in the 1986 elections because they were soft on crime. This article studies the voting patterns of the three justices who were on the California Supreme Court before and after the elections, revealing three distinct judicial and political strategies.

Lubben on Railroad Reorganization & Bankruptch Theory Stephen Lubben (Seton Hall University - School of Law) has posted Railroad Receiverships and Modern Bankruptcy Theory on SSRN. Here is the abstract:
    Some of the most important - and most interesting - recent work in the area of corporate and sovereign bankruptcy is rooted in the late 1800s and early 1900s, the golden age of the railroad receivership. Yet we know very little about railroad or equity receiverships beyond how they worked in theory. This paper remedies the existing gap in the literature by looking at a sample comprised of the largest railroads in the United States at the turn of the twentieth century, approximately half of which went through a receivership between 1890 and this country's entry into World War I. By examining the fate of these two groups of railroads after the World War, I am able to shed some light on the long-term effectiveness of receiverships. The results are striking. The data shows that having undergone a receivership before World War I made a railroad more than two and a half times (i.e., 150%) more likely to undergo another receivership or bankruptcy after the War. The average railroad that reorganized under a receivership subsequently failed at a rate more than twice as high as railroads that had never gone through a receivership and almost three times as high as modern chapter 11 debtors. And the data shows that Morgan's involvement with a road had little effect on the road's ability to avoid financial distress.