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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Sunday, February 29, 2004
Legal Theory Calendar
    Monday, March 1
      At Columbia's law and economics series, Lee Anne Fennell (Texas) presents Common Interest Tragedies. This should be good!
      At NYU, Paul Chevigny presents Social Dancing and Social Association.
      At George Mason's Philosophy, Politics, & Economics series, Christopher Mantzavinos, Research Group in Collective Goods, Max Planck Institute, presents Naturalistic Hermeneutics.
      At the University of Chicago's law and philosophy series, Emily Buss, University of Chicago Law School, was tentatively schedule to present The Relationship Between Procreative and Parental Rights. Does anyone know if this is still on?
      At Loyola Marymount, Mark V. Tushnet, Georgetown, presents Social Welfare Rights and the Forms of Judicial Review.
      At Oxford's Centre for Socio-Legal Studies, Heather Douglas presents Black skins and white hearts: Assimilation policy in Australia and the 1950`s justice of Kriewaldt.
      At UCLA, Paul Zak, Claremont Graduate University, presents The Neurobiology of Trust.
      At Oxford's Moral Philosophy Seminar, Elijah Millgram (Utah) presents Reasonably Virtuous.
    Tuesday, March 2
      At the University of Chicago's political theory workshop, Luis Medina, University of Chicago, presents Who Is Afraid of Collective Intentionality?
      At Chicago's Olin series, Suzanne Scotchmer, Professor of Economics and Public Policy, University of California, Berkeley, presents Procuring Knowledge, coauthored with Stephen M. Maurer.
      At Oxford's Jurisprudence Discussion Group, Shlomit Wallerstein, presents Justifying the Right of Self Defence: The Problem of Self Preference.
      At Oxford's Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents What We Owe to Our Children.
    Wednesday, March 3
      At the University of London's famous Colloquium in Legal and Social Philosophy, Nigel Simmonds (Corpus Christi, Cambridge) presents Law as a Moral Idea.
      At Northwestern's constitutional law series, Jed Rubenfeld, Yale University Law School, presents The Structure of American Constitutional Law.
      At Oxford, Lady Justice Arden presents the Halsbury Annual Lecture: Terrorism and Human Rights.
      At Oxford's Environmental Law Discussion Group, Xabier Ezeizabarrena presents The `Prestige` shipwreck: Some limits of international environmental law.
      At NYU's legal history series, Williamjames Hoffer, History, Seton Hall, presents Leviathan Bound: Lawyers, Congress, and the Building of the U.S. State, 1858-1891.
    Thursday, March 4
      At Florida State, Bill Page, University of Florida, presents Economic Authority and the Limits of Expertise in Antitrust Cases. Contrary to my report, FSU has not forgotten about leap year. Instead, I forgot it was March!!!
      At Yale's Legal Theory Workshop, Alex Aleinikoff, Georgetown (Law) presents The Constitution And the Challenge of Transnational Law.
      At Princeton's Political Philosophy Colloquium, Jeff McMahan, Rutgers, presents Unjust War.
      At Stanford's Olin Series, Ian Ayres (Yale Law School) presents To Insure Prejudice: Racial Disparities in Taxicab Tipping
      At Berkeley's GALA series, Peter Westen, University of Michigan Law School, presents Some Common Confusions About Consent in Rape Cases.
      At the University of Texas's Constitutional & Legal Theory Colloquium, Richard Primus (University of Michigan) presents Bolling Alone.
      At Boson University, Jim Lindgren is speaking.
      At George Mason, D. Bruce Johnsen, GMU School of Law, presents The Politicization of American Savings.
      At U.C. Berkeley's philosophy series, Julia Annas, University of Arizona, presents Virtue Ethics and Social Psychology.
      At Australian National University's RSSS, Luke Russell (University of Sydney) presents Developmental Systems Theory and the Evolution of Moral Behaviour.
      At UCLA's legal theory series, Deborah Hellman is speaking, but I do not have a title.
    Friday, March 5
      At the University of San Diego, Randy Barnett presents The Presumption of Liberty. I am looking forward to this! At Michigan's law and economics series, Vicki Been presents Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?.
      At UCLA's tax policy series, David Schizer, Columbia Law School, presents Inconsistencies, Imbalances, and the Taxation of Derivative Securities: An Agenda for Reform.
      At MIT's philosophy series, Elisabeth Lloyd, Indiana University, presents How Should We Understand Bias in Scientific Explanations?.
      At Oxford's Faculty of Law, Michael Rowe presents Vertical Agreements – Freezer Exclusivity.
      At Oxford's Human Rights Discussion Group, Liora Lazarus presents Prisoners` Rights in England and Germany.
      At Oxford's Institute of European and Comparative Law, Chris Hilson presents What’s in a Right? The Relationship Between Community, Fundamental and Citizenship Rights in EU Law.
      At UCLA, Owen Jones (ASU) presents Law and Behavioral Biology.
      At Tulane's Center for Ethics and Public Affairs, Geoffrey Sayre-McCord, University of North Carolina-Chapel Hill, presents Normative Concepts.
      At Princeton's philosophy department, Michael Strevens, Stanford University, presents Why Explanations Lie: An Account of Idealization in Explanation.
      At the Society for Applied for Philosophy in London, there will be a program on International Justice: Theory and Practice with Miltos Ladikos (Lancaster) & Katrin Filkschuh (LSE) as speakers and Doris Schroeder (Central Lancashire) as chair.

Legal Theory Lexicon: Social Welfare Functions
    Introduction One of the key ideas in contemporary economic theory in general and law and economics in particular is the social welfare function. Law students without a background in economics might be put off by the fact that social welfare functions are expressed in mathematical notation, but there is no reason to be intimidated. The basic ideas are easily grasped and the mathematical notation can be mastered in just a few minutes. This post provided an introduction to the idea of the social welfare function for law students, especially first year law students, with an interest in legal theory. Here we go!
      Normative Economics The idea of a social welfare function is part of normative economics. There are several plausible formulations of normative economics, but almost all of normative economics begins with the fundamental idea of utility as a conception or measure of the good. Economists may disagree about the nature of utility, the relationship of utility to social welfare, and the role of welfare in public policy, but most (if not all) economists would assent to the abstract proposition that ceteris paribus more utility is a good thing. But this apparent agreement is at a very abstract and ambiguous level. There are many different ideas about what "utility" is.
      Cardinal and Ordinal Interpretations of Utility One key divide is between cardinal and ordinal interpretations of utility. An ordinal utility function for an individual consists of a rank ordering of possible states of affairs for that individual. An ordinal function tells us that individual i prefers possible world X to possible world Y, but it doesn't tell us whether X is much better than Y or only a little better. A cardinal utility function yields a real-number value for each possible state of affairs. If we assume that utility functions yield values expressed in units of utility or utiles, then individual's utility function might score possible world P at 80 utiles and possible world Q at 120 utiles. We might represent the utility function U of individual i for P and Q as follows:
        Ui(P) = 80 Ui(Q) = 120
      The distinction between cardinal and ordinal utilities is potentially important for utilitarianism, at least on certain interpretations. As a theory of evaluation, utilitarianism is the view that an action is the best action if and only if the action maximizes utility when compared with all possible alternative actions. For technical reasons, utilitarianism requires both cardinality and full interpersonal comparability. This point about utilitarianism is closely related to the history of welfare economics, the explicitly normative branch of economic theory.
      Measurement Problems Both cardinality and interpersonal comparability pose measurement problems for economists. Even in the base of a single individual, it is difficult to reliability measure cardinal utilities. Measurements that support interpersonal comparisons are even more difficult to justify, and cardinal interpersonal comparisons seem to require the analyst (the person making the comparison) to make a variety of controversial value judgments. Market prices won't do as a proxy for utility, for a variety of reasons including wealth effects. The challenge for welfare economics was to develop a methodology that yields robust evaluations but does not require the cardinal interpersonally comparable utilities.
      Pareto This is the point at which Pareto arrives on the scene. Suppose that all the information we have about individual utilities is ordinal and non-interpersonally comparable. In other words, each individual can rank order states of affairs, but we (the analysts) cannot compare the rank orderings across persons. The weak Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if everyone's ordinal ranking of P is higher than their ranking of Q. Weak Pareto doesn't get us very far, because such unanimity of preferences among all persons is rare. The strong Pareto principle suggests that possible world (state of affairs) P is socially preferable to possible world (state of affairs) Q, if at least one person ranks P higher than Q and no one ranks Q higher than P. Unlike weak Pareto, strong Pareto does permit some relatively robust conclusions.
      The New Welfare Economics The so-called new welfare economics was based on the insight that market transactions without externalities satisfy strong Pareto. If the only difference between state P and state Q is that in P, individuals i1 and i2 engage in an exchange (money for widgets, chickens for shoes) where both prefer the result of the exchange, then the exchange is Pareto efficient. A state of affairs where no further Pareto efficient moves (or trades) are possible is called Pareto optimal. The assumption about externalities is, of course, crucial. If there are negative externalities of any sort, then the trade is not Pareto efficient.
      Weak Pareto and the Arrow Impossibility Theorem Weak Pareto plus ordinal utility information allows some social states (or possible worlds) to be ranked on the basis of everyone's preferences. A method for transforming individual utility information into such a social ranking is called a social utility function. Kenneth Arrow's famous impossibility theorem demonstrates that it is impossible to construct a social utility function that can transform individual ordinal rankings into a social ranking in cases not covered by weak Pareto, if certain plausible assumptions are made. Arrow's theorem has spurred two lines of development in welfare economics. One line of development relaxes various assumptions that Arrow made; for example, we might relax Arrow's assumption that the social ranking must be transitive (if X is preferred to Y and Y is preferred to Z, then X must be preferred to Z). The other line of development considers the possibility of allowing information other than individual, noncomparable ordinal utilities. It is this second line of development that is relevant to the use of social welfare functions in contemporary law and economics.
    Social Welfare Functions Suppose that we allow full interpersonal comparability and cardinal utility information. This is sufficient to support what are called Bergson-Samuelson utility functions, which have the form:
      W(x) = F (U1(x), U2(x), . . . UN(x))
      W(x) represents a real number social utility value for some state of affairs (or possible world) X,
      F is some increasing function that yields a real number,
      U1(x) is a cardinal, interpersonally comparable utility value yielded by some procedure for individual 1 for state of affairs X, and
      N is the total number of individuals.
    Bergson-Samuelson social welfare functions are named after Paul Samuelson and Avram Bergson.
    What Are the Plausible Social Welfare Functions? There are a variety of different possible functions that can be substituted for F. Here are some of the most important possibilities:
      Classical-utilitarian SWF--We could substitute summation for F, and simply add the individual utility values; this is sometimes called a Benthamite or classical-utilitarian social welfare function famously associated with Jeremy Bentham. The classical utility social welfare function can be represented as follows:
        W(x)={U1(x) + U2(x) + U(3(x) . . . Un(x)}
      Average-utilitarian SWF--The classical SWF adds the utilities. This raises some very interesting issues when the different states of the world (x or y) have different population sizes. When deciding whether to add additional individuals, the classical-utilitarian SWF says more is better until we reach the point where adding more actually reduces the overall level of utility. One way to avoid this implication is use the average level of utility instead of the sum, as in the following formula:
        W(s){[U1(x) + U2(x) + U(3(x) . . . Un(x)]/n}
      In other words, we divide the sum of utilities by the number of individuals!
      Bernoulli-Nash SWF--In the alternative, we could substitute the product function (¡Ç) and multiply individual utilities. This is sometimes called a Bernoulli-Nash social welfare function, which can be represented as follows:
        W(x)={U1(x) * U2(x) * U(3(x) . . . Un(x)}
      Rather than adding individual utilities, we multiply them! And yes, the "Nash" in Bernoulli-Nash is John Nash of "A Beautiful Mind" fame.
    What About the Problem of Interpersonal Comparison? Social welfare functions are much discussed in legal theory these days. One of the reasons for the contemporary debate over social welfare functions is that this approach has been championed by Louis Kaplow and Steven Shavell (both of the Harvard Law School). Their book, Welfare versus Fairness, has put the welfarist approach to normative economics "front and center."
    One of the interesting theoretical questons about SWFs concerns the problem of interpersonal comparison. How do we get the values to plug into U1(x), U2(x), and so forth. That is, how do we compare up with a way of putting my utility and your utility on the same scale. As I understand the state of play, this is not a topic on which economists agree. Some economists believe that there is no objective way of producing interpersonally comparable cardinal utility values. But some economists believe that a third-party (the legal analyst or the economist) can do the job of assigning values to individual utilities.
    Conclusion We've barely begun to scratch the surface of the many interesting theoretical issues that attend the use of social welfare functions in legal theory. Some of those issues were explored in a prior Legal Theory Lexicon entry on Balancing Tests. Even if you have absolutely no background in economics, there is no reason to shy away from the debates about social welfare functions. The notation, although at first intimidating, is actually very simple. The foundational ideas, although sometimes articulated in the jargon of economic theory, really go to fundamental questions in moral theory. I hope this post has given you the tools to begin to discuss these ideas!
For a complete collection of the Legal Theory Lexicon posts, surf here.

Saturday, February 28, 2004
Legal Theory Bookworm Today I've been dipping into Alan Wertheimer's Consent to Sexual Relations, a tiltle in the fine series, "Cambridge Studies in Philosophy and Law," edited by Gerald Postema. One of the really wonderful things about this book is its use of hypotheticals, complete with a very useful "Appendix," which lays them all out. Here is a description of the book:
    When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that ‘no’ means ‘no’. This book suggests that the difficult question is whether ‘yes’ means ‘yes’.
If you are interested in the law of rape or the theory of consent, you will want this book!

Download of the Week This week, the Download of the Week is Ex Ante versus Ex Post Justifications for Intellectual Property by Mark Lemley. Lemley's work has had a huge impact on American intellectual propertylaw, and this paper is an important statement on the foundations of IP theory. Here is the abstract:
    The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post - that IP will be "managed" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as "property" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn’t just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be "efficiently managed" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do. In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored.
Download it while its hot!
And with a certain immodesty, I should also like to recommend my own paper, Procedural Justice, which articulates and defends a general theory of fairness for civil and administrative adjudication.

Friday, February 27, 2004
Brighouse on Teaching Political Philisophy "Right" Check out this post by Harry Brighouse:
    Do we have an obligation to cover conceptual space and/or the space of public discourse in a course in a philosophy department? Teachers of metaphysics and epistemology are bound by neither obligation, and a good thing too. It?s a fair complaint that we teach Nozick. I stopped doing it when I found my impatience with him getting the better of me. ASU has always struck me as a bit slapdash ? and the best philosophy in it has little to do with his defence of his political philosophy. Fortunately, there are much more powerful and philosophically thorough defenses of libertarianism than Nozick?s, and my own preference has been to use them (Loren Lomasky?s far superior and unjustly neglected Persons Rights and the Moral Community, for example). I also like to use Milton Friedman?s brilliant little book Capitalism and Freedom, a defense of classical liberalism which occasionally invokes more conservative ideas than most libertarians countenance. Though it, too, makes numerous philosophical errors it is easier to be patient because it has so much else of value in it and because Friedman, who was not the most brilliant philosopher of his generation, does not seem so culpable for philosophical carelessness.

Friday Workshops

Kaplan on Economic Inequality Richard L. Kaplan (University of Illinois at Urbana-Champaign College) has posted Economic Inequality and the Role of Law (Michigan Law Review, Vol. 101, No. 6, May 2003) on SSRN. Here is the abstract:
    In Wealth and Democracy, famed commentator and analyst Kevin Phillips provides a political history of American economic life with a specific focus on the wealthy. He interweaves the development of American technology with the rise and fall of economic fortunes into a compelling tale with significant implications for the formulation of public policy and the laws that implement such policy. This review begins by examining the major sources of economic inequality and how they have increased the gap between rich and poor in America. The wealth of historical data in the book is considered with particular attention to the past quarter of a century. During this period, after all, economic inequality in the United States grew beyond all previous measures. Some of the key themes developed in this section include: (1) the corrupting effect of concentrated economic power on the political process, (2) the impact of vast wealth on the formulation of public policy, and (3) the increasingly precarious financial situation of middle-class families. The review then explores the role that legal regimes can play in addressing economic inequality and how Phillips systematically understated their importance - specifically, taxation, health care, and Social Security. With respect to taxation, the review analyzes three major provisions of the 2001 Tax Act: repeal of the estate tax, augmented contributions to tax-favored retirement accounts, and creation of tax-exempt college savings plans. Regarding health care, the review examines first the increasing phenomenon of workers without health insurance and then the largely invisible but painfully significant problem of long-term care. Finally, this section analyzes how Social Security consciously ameliorates economic inequality and how this feature will be discarded under most privatization proposals. The review concludes that Kevin Phillips has written an important book that should give serious pause to lawmakers involved in a wide range of critical issues facing America today. The increasing economic inequality of recent decades poses a significant challenge to the U.S. legal system and its democratic processes. As Phillips contends, the status quo is unsustainable and plutocracy is where we are headed, if we are not already there.

Schizer on Section 1091 David Schizer (Columbia Law School) has uploaded Scrubbing the Wash Sale Rules to SSRN. Here is the abstract:
    Loss limitations are an ugly but inevitable feature of any realization-based income tax. In essence, because the system mismeasures gains, it also has to mismeasure losses. Otherwise, the timing option inherent in the realization rule would allow taxpayers to defer gains (thereby reducing the tax's present value) while accelerating losses (thereby preserving the deduction's present value). The wash sale regime of Section 1091 is one of our system's most important brakes on the timing option. Yet it is only a slight exaggeration to say that compliance with the regime is voluntary for very wealthy taxpayers - or, at least, for those who are willing to take aggressive positions. In response, this Article flags seven glitches in the regime that, at least arguably, permit perfect end runs. As used here, this phrase refers to strategies in which taxpayers can deduct losses while effecting virtually no change in their economic position. The essential point is that, if we are going to have a wash sale regime, these end runs should not be allowed. This Article also takes a more controversial position: Losses should still be deferred - even when taxpayers make meaningful changes in their economic position - as long as they keep material elements of their old return. The policy goal here is to ensure that, on average, taxpayers expect losses to be deferred as long as gains. This Article proposes concrete modifications in the regime to implement this goal, while also offering a caveat: The case for a strong wash sale regime is less strong if the regime can never be tough enough to stop loss harvesting. If so, other constraints on the timing option may be preferable, including accelerated timing for gains or a broader capital loss regime.

Ho & Imai on Ballot Order Effects Daniel E. Ho and Kosuke Imai (Yale University - Law School and Princeton University - Department of Politics) have uploaded Shaken, Not Stirred: Evidence on Ballot Order Effects from the California Alphabet Lottery, 1978 - 2002 to SSRN. Here is the abstract:
    We analyze a natural experiment to answer the longstanding question of whether the name order of candidates on ballots affects election outcomes. Since 1975, California law has mandated randomizing the ballot order with a lottery, where alphabet letters would be shaken vigorously and selected from a container. Previous studies, relying overwhelmingly on non-randomized data, have yielded conflicting results about whether ballot order effects even exist. Using improved statistical methods, our analysis of statewide elections from 1978 to 2002 reveals that in general elections ballot order has a significant impact only on minor party candidates and candidates for nonpartisan offices. In primaries, however, being listed first benefits everyone. In fact, ballot order might have changed the winner in roughly nine percent of all primary races examined. These results are largely consistent with a theory of partisan cuing. We propose that all electoral jurisdictions randomize ballot order to minimize ballot effects.

Law Review Submission Dates: Updated as of February 27, 2004 Every Spring, new law review boards take the helm and begin considering articles for the next academic year's volume. This post, which will be continually updated and moved to the top of blog, reports on the key dates for submission to the top journals. Here is the information organized by current status for reviews that have provided information on board transitions:
  • New Board Reviewing Articles Now--Yale Law Journal, Harvard Law Review, Stanford Law Review, Michigan Law Review, Virginia Law Review, Georgetown Law Journal, Duke Law Journal, Notre Dame Law Review, William and Mary Law Review, William Mitchell Law Review
  • New Board Begins Operating in the Last Week of February--California Law Review, Vanderbilt Law Review
  • New Board Begins Operating in the First Week of March--Columbia Law Review, Texas Law Review, Geroge Washington Law Review, Hastings Law Journal, Emory Law Journal, Ohio State Law Journal, North Carolina Law Review, Georgia Law Review
  • New Board Begins Operating later in March--Cornell Law Review, Fordham Law Review, Minnesota Law Review, Iowa Law Review, Washington University Law Quarterly, Arizona State Law Journal, Tulane Law Review
  • New Board Not Selected Until After March--University of Chicago Law Review, Washington & Lee Law Review (old board reviewing for next year now)
And here is the detailed information on each journal:
  • Yale Law Journal--the incoming Editor-in-Chief reports that the new board is considering articles for next year's volume.
  • Harvard Law Review--an editor reports that the new articles office is up and running.
  • University of Chicago Law Review--the Editor-in-Chief reports that the Board turns over in mid-April of this year -- about a month after the boards of most other law reviews. The new articles editors begin considering submissions immediately thereafter. Chicago strongly encourages that articles be submitted whenever they are ready, even if that is before mid-April.
  • Stanford Law Review--the Senior Articles Editor reports that the new board is in place and accepting manuscripts for next year.
  • Columbia Law Review--the Executive Articles Editor reports that the incoming Articles Committee will begin reviewing submissions on March 1, 2004.
  • California Law Review--the Managing Editor reports that the new board will begin considering articles for Volume 93 this week (around February 27).
  • Michigan Law Review--the Articles Editor reports that the new board has been elected, they are now reading articles for the new volume, and the official transition will occur on March 10.
  • Texas Law Review--the outgoing Edition-in-Chief reports that the the new editorial board of the Texas Law Review will begin to review articles next week (e.g. about beginning of March) and the Chief Articles Editor expects that review will start on or about March 1.
  • Virginia Law Review--the incoming Articles Editor reports that the new board was elected on Friday, February 13, is now accepting submissions and will begin reviewing them forthwith.
  • Georgetown Law Journal--the Senior Articles Editor reports that the new board is in place and has been considering articles since February 13th.
  • Cornell Law Review--the website reports that the new board will begin making decisions in mid-March.
  • Northwestern University Law Review--the website reports that submissions for the Fall and Winter issues will be accepted beginning in February.
  • Duke Law Journal--the outgoing Editor-in-Chief reports that the new board is in place and submissions are currently being considered for the new volume. The incoming Managing editor reports that review began on February 20.
  • Vanderbilt Law Review--the website reports that submissions will be accepted starting on March 1.
  • Iowa Law Review--the editors report that the new board will begin reviewing submissions on March 15.
  • Minnesota Law Review--a faculty member reports that the new board will be elected on Saturday and begin reviewing manuscripts in early March.
  • George Washington Law Review--the Editor-in-Chief reports that the new editorial board is selected on February 20 and the incoming Articles Committee will begin reviewing submissions on March 1, 2004 for Volume 73, the first issue of which will print in November 2004. The old board does not exit until April 1.
  • University of Illinois Law Review--the website reports that articles will be accepted starting January 20. I have been unable to confirm the board transition date.
  • Fordham Law Review--the Editor-in-Chief reports that the new board will begin considering submissions for next year at the end of March.
  • Hastings Law Journal--the Editor-in-Chief reports that Hastings is still considering articles for the current volume. The new board will be in place by first week in March and will begin considering articles for the new volume in the second week of March.
  • Washington University Law Quarterly--the incoming Executive Articles Editor reports that they will begin reviewing submissions in mid-March.
  • Emory Law Journal--the editors report that the new board will begin reviewing articles on March 1.
  • Ohio State Law Journal--the incoming Editor-in-Chief writes they will begin accepting submissions for its Fall 2004/Spring 2005 issues on March 1, 2004.
  • North Carolina Law Review--the website indicates that submissions will be considered for next year's volume starting on March 1.
  • Notre Dame Law Review--the incoming Executive Editor reports that the new Board is in place and reviewing manuscripts for next year.
  • Arizona State Law Journal--the website reports that submissions for the next volume will be accepted sometime in March.
  • Tulane Law Review--the website reports that submissions of the next volume will be considered beginning at the end of March.
  • William & Mary Law Review--the editors report that the new board is in place and considering submissions for next year's volume.
  • Washington & Lee Law Review--the editors report that the new board is selected in April, but that articles are reviewed continuously.
  • Georgia Law Review--the outgoing Executive Editor reports that the new board will begin reviewing articles on March 1.
  • William Mitchell Law Review--the Editor-in-Chief reports that the new board has been selected and is considering articles for next year's volume.
If you would like me to list information for your journal, please email the details (including the date the new articles editors will begin work) to

Thursday, February 26, 2004
Blogging from the Virginia Symposium on Brown v. Board Check out Pallavi Guniganti's blogging on Half the Sins of Mankind from the University of Virginia Law School's symposium last weekend on Brown v. Board of Education:

I'm an 8(a)
    YOU ARE RULE 8(a)! You are Rule 8, the most laid back of all the Federal Rules of Civil Procedure. While your forefather in the Federal Rules may have been a stickler for details and particularity, you have clearly rebelled by being pleasant and easy-going. Rule 8 only requires that a plaintiff provide a short and plain statement of a claim on which a court can grant relief. While there is much to be lauded in your approach, your good nature sometimes gets you in trouble, and you often have to rely on your good friend, Rule 56, to bail you out. Which Federal Rule of Civil Procedure Are You?
    brought to you by Quizilla
Who knew?

Procedural Justice I've just fiished a new paper entitled Procedural Justice. Here is the abstract:
    Procedural Justice offers a theory of procedural fairness for civil dispute resolution. The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? This Article responds to the challenge posed by the hard question of procedural justice. That theory is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. These two sections set the stage for the more difficult work of constructing a theory of procedural legitimacy. That work begins in Part IV, Views of Procedural Justice, which investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first theory, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second theory, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third theory, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice.
Comments are most welcome! Download it while its hot!!

Thursday Workshops
    At the University of Pennsylvania's law and philosophy series, there is a very special treat. Harry Frankfurt is giving a two part lecture. Part one is entitled Taking Ourselves Seriously and part two is Getting It Right.
    At UCLA's legal history series, Dan Ernst, Georgetown, presents The Recruitment of New Deal Lawyers: State, Party and Profession.
    At UCLA's tax policy series, John Matsusaka, USC Business School, presents Fiscal Policy & the Initiative Process.
    At Boston University Law School either Bob Bone or Rusty Park is speaking. ???
    At George Mason, Todd Zwycki (FTC) presents An Economic Analysis of the Consumer Bankruptcy Crisis.
    At Oxford's Public International Law Discussion Group, Anthony Aust presents Iraq: the Reckoning.
    At Australian National University's RSSS, Jeanne Peijnenburg (University of Groningen) presents Regret and Retrocausality.
    At Princeton's Public Law Colloquium, Helena Silverstein, Lafayette College, presents Law Bypassed: Constitutional Rights and State Mandated Parental Consent for Abortion.
    At the University of Hertfordshire Centre for Normativity and Narrative, Brendan Larvor (Hertfordshire)presents Particularism in Ethics and the Exact Sciences.
    At Royal Holloway College, University of London, Professor Richard Sorabji, Wolfson College, Oxford delivers the Dabis Memorial Lecture, entitled The Self in Ancient Thought.

An Important Paper by Mark Lemley Mark A. Lemley (University of California, Berkeley - School of Law (Boalt Hall)) has posted Ex Ante versus Ex Post Justifications for Intellectual Property on SSRN. Here is the abstract:
    The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post - that IP will be "managed" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as "property" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn’t just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be "efficiently managed" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do. In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored.

Ben-Shahar on Deliberately Incomplete Contracts Omri Ben-Shahar (University of Michigan Law School) has posted 'Agreeing to Disagree': Filling Gaps in Deliberately Incomplete Contracts. Here is the abstract:
    This Article develops a new standard for gap filling in incomplete contracts. It focuses on an important class of situations in which parties leave their agreement deliberately incomplete, with the intent to further negotiate and resolve the remaining issues. In these situations, neither the traditional no-enforcement result nor the usual gap filling approaches accord with the parties' partial consent. Instead, the Article develops the concept of pro-defendant gap-fillers, under which each party is granted an option to enforce the transaction supplemented with terms most favorable (within reason) to the other party. A deliberately incomplete contract with pro-defendant gap fillers transforms into two complete contracts, each favorable to a different party, with each party entitled to enforce only the contract favorable to her opponent. Under this approach, partial consent gives rise to a correspondingly intermediate burden of liability. The Article demonstrates that this regime promotes the interests of negotiating parties who enter agreements-to-agree. It also identifies various doctrinal practices that already incorporate the pro-defendant gap filling logic.

Two by Ferrell Allen Ferrell (Harvard Law School) has two new papers on SSRN:
    Why Continental European Takeover Law Matters:
      This paper addresses the following question in the context of considering the recommendations of the High Level Group of Company Law Experts on Takeover Bids: Why does Continental European takeover law matter given the concentrated ownership structure of most Continental European firms? In answering this question, the paper discusses the interaction between takeover rules and ownership structure and the possible lessons that can be drawn from the British and American experience with takeover regulation. While a ban on the use of defensive tactics without shareholder approval (possibly in conjunction with a mandatory bid rule) can theoretically have the effect of either encouraging or discouraging the adoption of dispersed-ownership structures, the empirical evidence suggests that the former would be the more likely result. Moreover, the British and American experience highlights the importance of adopting a takeover regime earlier rather than later in time.
    Mandated Disclosure and Stock Returns: Evidence from the Over-the-Counter Market
      Mandated disclosure requirements placed on publicly-traded firms constitute the core of U.S. securities regulation. Despite their importance, few empirical studies have been done on the impact of mandated disclosure requirements on the capital markets. Using a unique database created for this study, this paper examines the impact the 1964 imposition of mandated disclosure requirements had on the over-the-counter market in terms of stock returns, volatility and stock price synchronicity. Despite this being the only fundamental change in the scope of mandated disclosure in the U.S. in the twentieth century - with the exception of the initial securities acts of the 1930s - this regulatory change has never been examined. This study finds that there was a dramatic reduction in the volatility of OTC stock returns associated with the imposition of mandated disclosure. At the same time, there was no change stock price synchronicity associated with mandated disclosure. The evidence on stock returns is inconclusive but suggestive of a positive abnormal associated with mandated disclosure.

McDaniel on Trade Agreements & Income Taxation Paul McDaniel (Boston College - Law School) has posted Trade Agreements and Income Taxation: Interactions, Conflicts, and Resolutions (Tax Law Review, Forthcoming) on SSRN. Here is the abstract:
    This paper builds on prior short pieces I have done on trade and taxation. I drew three conclusions from that prior work: 1. A normative income tax structure and free trade principles do not conflict with each other. 2. The tax provisions that are part of a normative tax structure should be outside the scope of trade agreements and procedures. 3. Subsidies run through the tax system (tax expenditures) should be subject to scrutiny under trade agreements just as are direct subsidies. A country cannot insulate a subsidy from challenge under trade agreements simply by placing it in a tax system. In Part I of the paper, I first review the history of the Domestic International Sales Corporation (DISC) provisions. commencing with the challenge by the European Communities (EC) and Canada under the then-existing GATT procedure. The DISC regime was found to violate U.S. obligations under GATT. Congress responded by enacting the Foreign Sales Corporation (FSC) system. The EC challenged this program and a WTO Dispute Panel found that the FSC regime violated U.S. WTO obligations. The decision was affirmed by a WTO Appellate Body. Congress tried again by enacting the Extraterritorial Income Exclusion Act (ETI) but this system too was stricken down by a WTO Dispute Panel and an Appellate Body affirmed the decision. I examine the arguments put forth by the EC and the U.S. in both the FSC and ETI cases as well as the basis for the decisions by the WTO bodies. I briefly examine the standard by which the WTO body approved some $4 billion in countermeasures against the U.S. Those sanctions are scheduled to go into effect March 1, 2004 if the U.S. has not terminated the ETI regime. I then turn to an assessment of the FSC and ETI decisions from three perspectives: legal/structural, economic, and sovereignty/political. From the legal/structural perspective, I conclude that the WTO decisions were correct under applicable WTO provisions and focus particularly on the methodology employed to determine whether a particular regime constitutes a "subsidy" or not. Assessing the decisions from an economic perspective, I begin by sketching briefly the case for free trade and then examine whether the FSC and ETI regimes likely increased or decreased both U.S. and global welfare. Economic theory suggests that the welfare of each was decreased by the subsidies. Unfortunately, there is little empirical work available to test the theory. What little there is suggests that U.S. exports may have increased as a result of the subsidies, but the studies do not address whether this increase was achieved at an acceptable revenue cost or the welfare effects of the subsidies. I conclude this part of the paper by noting the impact of currency exchange rates on the effectiveness of the subsidies. The final part of the paper examines the WTO decisions from what I call a sovereignty/political perspective. I first test out whether the U.S. sacrifices an acceptable level of sovereignty on entering into the WTO agreements in the first place and whether the WTO decisions represent a further and unacceptable invasion of U.S. sovereignty. Building on work by Professor Michael Schaefer, I conclude that the U.S. has sufficient built-in processes to protect it from intrusive invasion of its sovereignty by virtue of the WTO agreement and FSC/ETI decisions. From a political perspective, I assess the arguments that the FSC/ETI provisions are needed to put U.S. multinationals on a competitive level with multinationals from exemption countries. I show that this argument has no economic or factual basis and should be rejected.

Thomas on Civil Rights Remedies Tracy A. Thomas (University of Akron - School of Law) has posted The Prophylactic Remedy (Buffalo Law Review, Vol. 52, Spring 2004) on SSRN. Here is the abstract:
    This article is the first complete normative and descriptive treatment of the modern civil rights remedy - the prophylactic injunction. The prophylactic remedy is a public law injunction that uniquely restricts legal conduct that is affiliated with, but distinct from, the illegal wrong. The United States Supreme Court has utilized prophylactic remedies for over forty years, and has used the prophylactic paradigm to shape its jurisprudence on Section 5 of the Fourteenth Amendment. Prophylaxis, however, remains an ambiguous concept in the eyes of most scholars and lawyers. This article attempts to fill the academic void by exploring the doctrinal and theoretical parameters of the prophylactic remedy. By so doing, it attempts to establish a framework for the use of prophylactic remedies by the courts and to deflate the criticism of certain skeptics who mischaracterize such remedies as overly broad misuse of judicial power. Ultimately, the article has two goals. The primary purpose of the article is to provide an analytical framework that will enable judges, lawyers, and scholars to understand the contours of prophylactic relief. Accordingly, the article identifies trans-substantive remedial principles of prophylactic relief apparent in modern Supreme Court precedent regarding the appropriate character, scope, and use of prophylactic relief. The second and more ambitious goal of the paper is to dispel the myth that prophylactic relief is an overly broad remedy arising from the judge's personal political activism. A close analysis of the Supreme Court's decisions demonstrate quite the contrary - that prophylactic remedies are based upon solid doctrinal and theoretical principles legitimizing its continued use as a viable and necessary remedy.

Cheng on Changing Scientific Evidence Edward K. Cheng (Brooklyn Law School) has posted Changing Scientific Evidence (Minnesota Law Review, Vol. 88, No. 315, 2003) on SSRN. Here is the abstract:
    A number of high-profile toxic tort cases, such as silicone breast implants, have followed a familiar and disturbing path: Early studies suggest a link between a suspected substance and a particular illness. Based on these initial studies, lawsuits are brought and juries award large judgments to various plaintiffs. Then later, more comprehensive studies find no evidence of a causal link. How should the legal system cope with this problem in which new scientific evidence calls into question previous findings of liability? These erroneous judgments seriously harm social welfare and legitimacy. Beneficial products are needlessly discontinued or are made more expensive, and public confidence is undermined by decisions entirely at odds with science. This Article observes that in a subset of cases, the legal system's traditional emphasis on speedy dispute resolution and finality is brought into direct conflict with science's culture of incremental study and constant reevaluation. The resulting timing mismatch is at the root of the "changing scientific evidence" problem. To alleviate it, the Article suggests the use of two alternative procedural devices. Courts could stay proceedings for a fixed period of time when additional confirmatory studies were anticipated. Alternatively, courts could address changing scientific evidence after final judgment through an expansion of post-judgment relief. Either of these options would enable courts to be more accommodating to the scientific process, while simultaneously spurring scientists to better serve legal inquiry.

Wednesday, February 25, 2004
Infothought on Constitutionalizing Fair Use Courtesy of Donna Wentworth, whose judgment seems always reliable, this fine post from Infothought's Seth Finkelstein on the DMCA, fair use, Eldred, and the recent opinion in 321 Studios v MGM.

Volokh on Davey v. Locke Link. Taste:
    If the state of Washington decided to give special benefits for students of devotional theology (a $3000 scholarship only to people who are studying materials that are "devotional in nature or designed to induce religious faith"), that would be a sure violation of the Establishment Clause, because it would be discrimination in favor of religion. But when the state does the exact opposite, by specially excluding such students from a generally applicable program -- when it discriminates against religion -- that's completely constitutional, even though the Establishment Clause itself has long been described as barring disapproval as well as endorsement of religion, inhibition as well as promotion of religion, hostility towards as well as favoritism towards religion. The result, I think, genuinely is the discrimination against religion that people have complained about (sometimes wrongly, but here rightly) -- not just exclusion of either pro-religion or anti-religion messages from the government's own speech, but a regime where the government may discriminate against private religious institutions and programs, but may not discriminate in their favor. Now this is a wrong that is indeed worth amending the Constitution over.

Simons on Dripps on the Fundamental Attribution Error and Criminal Law Ken Simons has a post on a recent article by Don Dripps. The topic is the so-called "fundamental attribution error." More some thoughts of mine on the general topic, see Do Humans Have Character Traits?

Duff on Justification and Excuse The very learned Antony Duff has more to say about justification and excuse over at Punishment Theory.

Muller's Question Unintended consequences are the focus of a post by Eric Muller that asks this question:
    Here's the question: if you are a supporter of gay rights, was Lawrence a good thing? If we knew that in a world without Lawrence, the political process (as influenced by continuing slow societal development never impacted by a Supreme Court decision) would eventually come to accept gay marriage in many states, would we be better off in that world, or in a world in which the Constitution forbids states from criminalizing homosexual sex but also bans gay marriage?

What Students Want from Law Professors Good posts on Stay of Execution and Jeremey's Weblog. Link via Froomkin--whose blog is terrific!

Felten on P2P Privacy Ed Felten writes:
    New P2P technologies are more effectively shielding the identities and net addresses of their users, according to a John Borland story at This is not surprising given that the past generation of P2P systems did essentially nothing to hide their users' addresses. Agents of the RIAA exploited that lack of protection to identify people uploading copyrighted music, leading to the wave of lawsuits against P2P users.

Balkin on the FMA & the Other Thirteenth Amendment Check out Balkin here. Here is the text of the "other" Thirteenth Amendment:
    No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

Tillman on Noncontemporaneous Lawmaking Seth Tillman has posted Noncontemporaneous Lawmaking: Can the 108th Senate Enact a Bill Passed by the 107th House? on SSRN. Here is the abstract:
    The text of the Constitution nowhere expressly demands contemporaneous action (i.e., during the life of a single two year session) by the two houses of Congress as a precondition for valid lawmaking. No on-point federal decision mandates contemporaneity - nor do the precedents of the two Houses (i.e., the reported decisions of the Speaker, the Clerk, the Secretary, the parliamentarians, etc.). Is this a power Congress has chosen never to exercise? Or, a power that Congress does not possess? Can we be sure that the federal courts would intervene to block such a practice, particularly if the bill were signed by a Speaker and a Vice-President - albeit, perhaps not in office concurrently? This piece is presented in a comic voice: a memorandum offering confidential legal advice to Speaker Hastert from an embittered politically spiteful Republican House counsel.

Gillette on the Modern Law Merchant Clayton P. Gillette (New York University Law School) has posted The Law Merchant in the Modern Age: Institutional Design and International Usages Under the CISG (Chicago Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
    Recent scholarship in commercial law has considered whether ambiguities of contractual language and contractual gaps are best resolved through a "plain meaning" rule or a strategy that incorporates trade custom. The debate is difficult to resolve by asking which strategy minimizes total contracting costs, because different strategies reduce different elements of those costs. In this brief essay, written for a conference on The Empirical and Theoretical Underpinnings of the Law Merchant, I suggest a taxonomy of the conditions under which trade usages would be sufficiently precise, observable, and verifiable as to warrant their incorporation. I apply the conclusions from that analysis to an area that doctrinal law, counterintuitively, implies is appropriate for the application of the incorporation strategy - international sales transactions governed by the UN Convention on Contracts for the International Sale of Goods, or CISG. The complexity of international sales and diversity of transactors suggests that this is a peculiar arena for the incorporation strategy. Nevertheless, I conclude that the conditions for adoption of trade usages under the CISG are surprisingly ripe, and, as currently applied by courts, the incorporation strategy does not generate the substantial costs attributed to it. I suggest that this occurs, in large part, because adjudicators have tended to entertain claims of custom only where the alleged trade usage conditions on variables that are both observable and verifiable.

Orbach on the Durapolist Puzzle Barak Y. Orbach (The University of Michigan Law School) has uploaded The Durapolist Puzzle: Monopoly Power in Durable-Goods Market (Yale Journal on Regulation, Vol. 21, No. 1, 2004) to SSRN. Here is the abstract:
    This Article studies the durapolist, the durable-goods monopolist. Durapolists have long argued that, unlike perishable-goods monopolists, they face difficulties in exercising market power despite their monopolistic position. During the past thirty years, economists have extensively studied the individual arguments durapolists deploy regarding their inability to exert market power. While economists have confirmed some of these arguments, a general framework for analyzing durapolists as a distinct group of monopolists has not emerged. This Article offers such a framework. It first presents the problems of durapolists in exercising market power and explains how courts have treated these problems. It then analyzes the strategies durapolists have devised to overcome difficulties in acquiring and maintaining monopoly power and the legal implications of these strategies. This Article's major contributions are (a) expanding the conceptual scope of the durapolist problem, (b) presenting the durapolist problem as an explanation for many common business practices employed by durapolists, and (c) analyzing the legal implications of strategies employed to overcome the durapolist problem.

Blumenthal on Law & the Emotions Jeremy A. Blumenthal (Seton Hall University - School of Law) has uploaded Law and the Emotions: The Problems of Affective Forecasting to SSRN. Here is the abstract:
    Legal scholarship on behavioralism and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of the emotions in legal discourse. Discussion turns on the "appropriateness" of various emotions for the substantive law, and on attempts to model the place of the emotions in the law. Implicit in some of these theories, however - and explicit in others - is the assumption that emotions are "predictable," "manageable," and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates individuals' inability to accurately predict future emotional states, both their own and others'. Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well. In this Article I review the psychological data demonstrating inaccuracies in affective forecasting, and spin out their implications in a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia. I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion I include some of the specific drawbacks to some current theories. In addition, I address the data's implications for the very theories of welfare and well-being that underlie much legal policy, as well as some speculations about what the findings might have to say about potential paternalistic policies.

Wednesday Workshops
    At University College London's Colloquium on Legal and Social Philsophy, Charles Fried presents Freedom of Speech as Freedom of Mind.
    At NYU's legal history series, Annette Gordon-Reed, Professor of Law, New York Law School presents The Africans and the English.
    At Oxford's Centre for Criminological Research Seminar Series, Nikolas Rose presents Governing Risky Individuals in a Biological Age.
    At George Mason's Workshop in Philsophy, Politics, and Economics, Claire Hill (School of Law Chicago-Kent College of Law) presents Beyond Mistakes: The Next Wave of Behavioral Law and Economics.
    At London's Centre for Philosophical Studies, Serena Olsaretti (Cambridge) presents Can Affirmative Action be Justified?.

Tuesday, February 24, 2004
Plain Meaning and Age Discrimination 29 U.S.C. Sec. 623 provides, "It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Today in General Dynamics Land Systems, Inc. v. Cline (opinion here, oral argument here), the United States Supreme Court held that this provision does not prohibit discrimination against younger employees in favor of older employees. Justice Souter's opinion for the Court deals with the statutory language this way:
    In the abstract, the phrase is open to an argument for a broader construction, since reference to "age" carries no express modifier and the word could be read to look two ways. This more expansive possible understanding does not, however, square with the natural reading of the whole provision prohibiting discrimination, and in fact Congress's interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better.
While Justice Thomas in dissent, writes:
    This should have been an easy case. The plain language of 29 U. S. C. §623(a)(1) mandates a particular outcome: that the respondents are able to sue for discrimination against them in favor of older workers. The agency charged with enforcing the statute has adopted a regulation and issued an opinion as an adjudicator, both of which adopt this natural interpretation of the provision. And the only portion of legislative history relevant to the question before us is consistent with this outcome. Despite the fact that these traditional tools of statutory interpretation lead inexorably to the conclusion that respondents can state a claim for discrimination against the relatively young, the Court, apparently disappointed by this result, today adopts a different interpretation. In doing so, the Court, of necessity, creates a new tool of statutory interpretation, and then proceeds to give this newly created .social history . analysis dispositive weight. Because I cannot agree with the Court.s new approach to interpreting antidiscrimination statutes, I respectfully dissent.
Any opinion that needs to rely on "clues" makes me nervous.

Limited Times, Eldred v. Ashcroft, and the Future of Copyright Larry Lessig points to a short piece by Douglas Keenan, addressing the question whether the terms provided by the Copyright Term Extension Act (author's life plus 90 or 120 for works for hire) violates the "limited times" requirement of the so-called "intellectual property clause." Here is a taste:
    In the USA, the constitution gives Congress the authority to grant a copyright for a limited time. The purpose of this is clear from the context: economic benefits. An economic benefit can be regarded as a sequence of cash flows. In finance, the duration of a sequence of cash flows is not measured directly in years; rather, duration is calculated via a formula involving interest rates. At present, Congress has granted copyrights to corporations for terms of 95 years. The duration of 95 years seems not significantly different from the duration of perpetuity. Hence, 95-year copyright terms seem effectively not time-limited. Thus, such terms might well violate the constitution.
There was lot's of discussion in the Eldred briefs of the added incentive created by the extension. Keenan's move comes from other other direction: how much less incentive do the CTEA terms offer than would a perpetual term. Frankly, I think this argument will not work--because it has no legal hook. What might work, however, is an argument based on the text of the clause. Here's how that might go:
    It is clear that a limited time is not an infinite one. If this were the only constraint imposed by this phrase, it would be a trifling constraint indeed. Congress might specify terms measured in centuries or millennia without approaching infinity. Indeed, any period or term at all, even one that would exceed the expected life of the Sun would be limited in this sense. This possibility motivates the search for some other constraint. Because there are finite spans of time that are unlimited for the purposes of humans, the phrase limited times must mean something other than a finite term if we are to attribute to the Framers some purpose in using the word “limited.” Consider first the possibility that “limited” means “brief” or “short in duration.” Given that the first Copyright Act specified a term of fourteen years plus a like term of renewal, it might be argued that the CTEA’s term of authors’ lives plus seventy years, being potentially quintuple the original term, would no longer qualify as conceivably “limited.” But without saying more, this interpretation is unsatisfactory. Why would we say that twenty-eight years is brief, but life plus seventy years is not? In the abstract and untethered to any particular context, the distinction seems arbitrary. Clearly, twenty-eight years is a very long time for some purposes. If a child were to ask a parent for a balloon and the parent were to reply, “I’ll get you one in a limited time,” or “you will have it shortly,” but the parent then waited twenty-eight years, the child would, if she remembered, rightly feel deceived or cheated. At the other extreme, twenty-eight years is but a blink of the eye in geological or evolutionary time. If an evolutionary biologist were to say, “The eye evolved in a surprisingly limited time,” we might expect the answer to be one million years or one hundred thousand years or perhaps an astonishingly brief ten thousand years. The lesson of these examples is that a time is limited with respect to a context. What then is the context of the phrase “limited Times” in the Copyright Clause? The times that are to be limited are those of the terms of exclusive rights in writings granted to authors. If society tells an author, “You may have an exclusive right to publish your work for a limited time,” what would the author reasonably expect? More relevantly, what would the Framers and ratifiers of the Constitution have expected? “Limited” in this context must be measured against the facts of human life in general and authorship in particular. There are exceptions, but usually authors are adult humans, who, if they do not meet with misfortune, have a normal full lifespan of more or less seventy to ninety years (up from perhaps fifty to eighty years some decades ago). A productive adult life begins in the late teens and usually ends in the late sixties to late eighties, depending on health. Thus, the phrase “limited Times” must be construed as bounded or restricted (to use the Oxford English Dictionary definition again) in the context of the time that individual human beings spend as authors—that is, limited with respect to a period that only very, very rarely would exceed seventy years. Given this context, the period provided by the Act of 1790 is a limited period. The original fourteen years and the renewal term of fourteen years provided a total of twenty-eight years. In the context of normal human lifetimes and the span of years during which an author might be productive, this is a long, but bounded or restricted period. The term provided by the 1831 Act (an original term of twenty-eight plus a renewal period of fourteen years) is in context, a very long, but still bounded term. The 1909 Act (increasing the renewal period to twenty-eight years for a total of fifty-six years) provided a term that for the majority of authors would be practically unlimited—fifty-six years would exceed the lifespan that would remain to many authors after they created their first work, but for at least some long-lived authors of those rare works with enduring market value, this term would be bounded and definite for practical purposes. Of course, with respect to individual works, a fifty-six year term is almost always the functional equivalent of an infinite term—because works that retain value past a fifty-six year period are exceedingly rare indeed.
For more of this argument, go here.

The Rule of Law and the Rule of Judges I posted yesterday on Ford on the Duty to Obey the Constitution. The gist of my comment was that city officials (like all of us) have a duty to obey the law--including the constitution--and that duty exists even before a judge tells us what it is. C.E. Petit has more on Scrivener's Error. Here is a taste:
    To borrow an approach from Slate, let's look at the extreme case. A military officer is even more bound to follow directives than is a "local official." Local officials, after all, aren't subject to court martial for failure to obey an order. Consider an order to raze a village in north-central Iraq. The order itself doesn't say so, but the superior officer—let's say the battalion commander, a lieutenant colonel—indicates to the company commander who will be charged with the task that this means killing civilians because they're almost all al Q'aida members, or at least sympathizers. In turn, the company commander (a captain) parrots this to the platoon leader, a second lieutenant barely out of Annapolis (we'll pretend these are Marines, not Army). The lieutenant blindly follows the order, resulting in the deaths of approximately 125 civilians. Under Ford's theory, the lieutenant did the right thing. Those with long memories may recall something similar in the 1960s. As Lt William Calley and Capt Ernest Medina found out, their defense that they were "only following orders" was improper both on factual grounds—they didn't present much evidence that such orders had actually been given, although later investigation indicates that they most probably were—and legal grounds. The military judge ruled that even if such orders had been given, they were so clearly unlawful that an officer under the pressure of a combat zone was still required to disobey them. This ruling was undisturbed on appeal. Under Ford's theory, though, the lieutenant (and captain) would not be guilty of war crimes, but would be guilty of disobeying an order.

Tuesday Workshops
    At Oxford's Jurisprudence Discussion Group, Danny Priel presents Legal Realism and Legal Positivism Reconsidered - Again. Here is a taste:
      Comparing “isms” is never an easy matter. It is particularly difficult when the first “ism” is a position associated with philosophers as early as Thomas Hobbes, had its “classical” period in the mid 19th century, and almost half of its most representative book is dedicated to showing the mistakes of previous writers associated with it, while the most famous proponent of the second “ism” said that it was not a school, only a “movement” whose members were joined “only in their negations, and in their skepticisms.”1 Still, for a long time a widely shared view was that legal positivism and legal realism are conflicting positions; the view was backed by a simple argument: positivism was identified with Langdellian formalism, and if there is one position the legal realists were undisputedly united in its “negation,” it is formalism. By simple substitution it follows that realism is opposed to positivism.2 This problem with this argument is that its first premise, namely that positivism is (or implies) formalism, is false. This has been by now persuasively shown many times, and there is no need to repeat this here again.3 Of course, very little follows from showing that that argument was not sound, not even that positivism and realism are not inconsistent. The novelty in Brian Leiter’s arguments, which he put forward in a series of articles4 was that he argued for a much stronger thesis. His thesis is that not only aren’t positivism realism inconsistent, but rather that the realists presupposed a theory of law along the lines of positivism; and not just any positivism, rather they presupposed the stronger version of positivism, the one known as hard (or exclusive) positivism. No doubt, in one rather loose sense of legal positivism, Leiter is surely right. Positivism is associated with the view that law can have whichever content those with the power to make and change law wish; the classical positivist position that immoral laws are still laws is only a special case of a more general claim. (All this is a bit rough, but the more refined picture is not important now.) The realists’ emphasis on what the law is, on taking the law as understood by the lawyer as a given or as an object of social scientific research seems indeed committed to the same view. Taking law as a social fact, epitomized in Hart’s denunciation of “much metaphysics, which few could now accept” rings similar to the realist Felix Cohen’s attack on “transcendental nonsense.”5 I do not wish to object that in this loose sense the realists can be seen as positivists. Leiter however is not content with this “family resemblance”; rather he offers a much stronger and clearly articulated claim. One aim of this paper is then to examine Letier’s arguments. I will try to show that there are several ambiguities in Leiter’s arguments, which once they are brought to light, damage his argument. I hope however that what I say will go beyond rebuttal of specific points in Leiter’s thesis. I hope that something more general about the relationships between a theory of law and a theory of adjudication, as well as a better understanding of positivism will emerge in a way that will reflect on other debates in analytic jurisprudence, and in particular some of the charges Dworkin leveled against positivism, which have sometimes been dismissed too swiftly by positivists. These responses were, I think, not only unsuccessful, but have not actually engaged Dworkin’s arguments. I hope what I will say will at least hint toward the direction of better answers.
    At Chicago's Olin series, Steven Kaplan, Graduate School of Business, Univesity of Chicago, presents How Do Legal Differences and Learning Affect Financial Contracts? coauthored with Frederic Martel and Per Strömberg.
    At the University of Texas, Michael Hoeflich, Univ. of Kansas, presents Lawyer Poets.
    At Florida State, Lee Breckenridge, Northeastern University Law School, presents Water Rights and Biological Integrity.
    At Oxford's The Uehiro Lectures in Practical Ethics, Jonathan Glover (KCL) presents Disability and Genetic Choice.

Korobkin on Heuristics for Law Russell B. Korobkin (University of California, Los Angeles - School of Law) has posted The Problems with Heuristics for Law on SSRN. Here is the abstract:
    A large body of evidence, now familiar to the legal community,demonstrates that individual judgment and choice is often driven by heuristic-based reasoning as opposed to the pure optimization approach presumed by rational choice theory. The evidence of heuristic-based reasoning presents several challenges for consequentialist legal scholars who wish to make normative public policy recommendations. First, the fact that actors subject to the legal system often rely on heuristics suggests that their behavior will not always maximize their subjective expected utility, undermining the traditional assumptions of law-and-economics scholarship that private contracts are necessarily Pareto efficient and that legal taxes and subsidies can cause actors to behave in a way that maximizes social efficiency. Second, the fact that the decision makers who create law also rely on heuristics suggests that law will not necessarily maximize the desired ends of lawmakers, whether those ends are the collective good or the utility of favored groups, and that law that attempts to create incentives for certain behaviors might not be properly calibrated to its goal. Parts I and II of this essay describe these two problems that heuristics cause for law, and Part III considers steps that lawmakers can take to mitigate the problems. This essay was prepared for the June 2004 Dahlem Conference on Heuristics and the Law.

Penalver on Regulatory Taxings Eduardo M. Penalver (Fordham University - School of Law) has posted Regulatory Taxings on SSRN. Here is the abstract:
    The tension between an expansive reading of the Takings Clause and the state's virtually unlimited power to tax has been the subject of repeated scholarly comment but has received little systematic exploration. Some scholars, most notably Richard Epstein, have attempted to use the tension between takings law and taxes as an argument against the legitimacy of taxation as it is presently practiced. This approach, however, has failed to gain a significant following. Instead, there is a broad legal consensus that legislatures have virtually unlimited authority to structure and allocate tax burdens. Nevertheless, every attempt to formulate a "Reconciling Theory," that is, a theory that would reconcile the prohibition of takings (understood to include the exercise of eminent domain as well as certain regulations of property) with such a broad tax power, yields a substantial category of Regulatory Taxings, government actions that, though they would likely be viewed as takings under current doctrine, cannot be distinguished from taxes under the particular Reconciling Theory. The persistence of the category of Regulatory Taxings demonstrates that present takings doctrine is far too broad to fully reconcile with the longstanding constitutional norms governing taxation. Given the overwhelming consensus that existing taxation practices are largely constitutional, this observation in turn suggests a need to adopt a narrower understanding of the Takings Clause. At a minimum, any regulation that can easily be translated into a permissible tax should not count as a taking in need of compensation. Moreover, generally applicable regulations and regulations of fungible property should rarely be treated as takings.

Klerman & Mahoney on the Value of Judicial Independence Daniel Klerman and Paul G. Mahoney (University of Southern California Law School and University of Virginia School of Law) has posted The Value of Judicial Independence: Evidence from 18th Century England on SSRN. Here is the abstract:
    This paper assesses the impact of judicial independence on equity markets. North and Weingast (1989) argue that judicial independence and other institutional changes inaugurated by the Glorious Revolution of 1688-89 allowed the English government credibly to commit to repay sovereign debt and more generally to protect contractual and property rights. Although they provide some supporting empirical evidence, they do not investigate the effect of judicial independence separately from that of other institutional innovations. This paper is the first to attempt to do so. We look at share price movements at critical points in the passage of the 1701 Act of Settlement and other events which gave judges greater security of tenure and higher salaries. Our results suggest that giving judges tenure during good behavior had a large and statistically significant positive impact on share prices, while salary increases and other improvements to judicial independence had impacts which were consistently positive, but not individually statistically significant.

Monday, February 23, 2004
Ford on the Duty to Obey the Constitution Richard Ford has a column on San Francisco's gay marriage policy, the California DOMA, and the rule of law over on Slate. Here is the passage that interests me:
    It's a clever argument but not clever enough. Even if the courts ultimately were to agree with the city on the merits, the issue is for the courts to decide, not local officials. It's simple black-letter law that otherwise valid legislation is presumed to be constitutional until and unless judicially invalidated. Until a court decides otherwise, then, local officials are bound to uphold state law. There's a good reason that courts and not elected officials are in charge of invalidating legislation under constitutional norms. Not only are many local officials legally untrained and thus practically incompetent to make judgments on matters of constitutional law, but all local officials are subject to political pressures and thus likely to reach politically expedient conclusions about their constitutional duties. It's no accident that the constitutional epiphany that allowed gay marriage took place in a city with a large and politically powerful gay community: This particular Damascus road was paved with votes.
I take a hard line on the rule of law. I believe that the virtue of justice requires adherence to the law, except in extraordinary circumstances, even when we disagree with the law as a matter of policy or principle. But Ford's argument is premised on a fundamental misunderstanding of what justice requires. City officials, like judges, are obligated by the law itself. This means that when the responsible city official believes that an ordinance or is unconstitutional, she should not enforce it. Ford takes the position that the rule of law is virtually identical with the rule of judges--a proposition that is unsound as a matter of political and legal theory. The rule of law requires that we adhere to the law--and not only to what judges have already pronounced the law to be.
Of course, there may be special circumstances in which a city official ought to act in a way that she believes is unconstitutional and hence unlawful. One such circumstance is when there is a valid statute that commands her not to exercise independent constitutional judgment. Another circumstance is when a court has actually issued an order to the judge or established a precedent that would bind the courts which could resolve the issue.
Ford argues that officials should not interpret state constitutions, because they lack institutional competence. That is certainly a possibility, but does this argument apply when the official is a mayor acting on the advice of counsel. The reality is that individual trial court judges vary enormously in their skill as interpreters of constitutional norms; some are excellent, others not. So do City Attorneys; some give excellent advice, others not.
This is not to say that I agree with the action taken by the city. I haven't studied the relevant precedents of the California Supreme Court. I have a suspicion that the mayor may have asked whether his action is arguably required by the state constitution, and not whether it really is so required. But that's just a suspicion--unlike so much of the discussion of this issue has been short on discussion of the cases and long on confident assertion.

Weekend Update On Saturday, the Download of the Week was a new paper by the extraordinary Jeremy Waldron. The Legal Theory Bookworm could not resist recommending Fiona Cownie's new book on legal academics. On Sunday, the Legal Theory Lexicon entry was on Balancing Tests and the Legal Theory Calendar previewed this weeks workshops, talks, and conferences.

A Ninth of the Text On Saturday, I had a short post entitled The Text of the Ninth Amendment. One of the points I made was that as a formalist I believe that when interpreting the Ninth Amendment, we should look to the text first:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
With respect to the federalism interpretation, notice that the text does not read as follows:
    The enumeration in the Constitution, of certain rights, shall not be construed to enlarge the enumerated legislative powers of Congress.
Mike Rappaport has a slick and very very smart reply to my post here. Here is one of his key moves:
    for the Framers’ generation, the relationship between government power and rights of the people is like a border between two countries. By moving the border between Canada and the US northward, you necessarily shrink Canada and enlarge the US. Similarly, by expanding government power, you shrink the retained rights of the people.
Notice, however, that this argument does not establish the primacy of the federalism interpretation over a retained rights interpretation--it argues instead for their equivalence. That is, Rappaport's argument--if we accept it--shows that the Ninth Amendment would have been understood as a retained-rights amendment, even if it had been worded as a federalism amendment. Read his post, which reflects Rappaport's keen intellect and deep grasp of the history. On this point, Kurt Lash adds:
    In terms of your discussion with Mike. I do not think the choices are between a federalism reading and a retained rights reading. After all, the federalism-based right to local self-government may be one of the retained rights of the people. Instead, I think it is more helpful to distinguish federalist from libertarian readings of the Ninth. Both readings involve the retained rights of the people. They just define them differently.
Owen Courreges has more on Southern Appeal here. And here is another comment by Lash--this one relating to the quesion as to what the retained rights consist of. I had observed that at a minimum, they include those rights in the first eight amendments. Kurt observes that there is more:
    I would like to complicate the picture just a bit. The text of the Ninth Amendment literally refers to more than just the enumerated rights in the Bill. At the very least it included the rights listed in Article I, sections 9 and 10. More, since the Ninth controls the construction of "certain rights" "enumerat[ed] in this constitution," there is no textual reason to exclude from its scope "enumerated rights" added later, such as the Fourteenth Amendment. Finally (and much more controversially) it would include enumerated power provisions to the extent that they can be understood as provisions granting "regulatory rights" to the government. The historical use of terms like "powers" and "rights" make this last point a distinct possibility (consider also the possibilities if one includes the 14th Amendment's section 5 as one of the "rights" enumerated by the Fourteenth). None of this contradicts your point about textually based theories, it merely broadens the range of potential application. None of these "enumerated rights" are to be construed in a manner disparaging the "other rights retained by the people."
Lash has two papers on the Ninth Amendment, which you can access here and here. Also, my colleague Laurence Claus has an excellent paper on the Ninth Amendment, which you can access here.) And if you haven't done so already, I highly recommend that you get Randy Barnett's important and lucid book, Restoring the Lost Constitution, which deals extensively with the Ninth Amendment.