Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Sunday, February 29, 2004
Legal Theory Calendar
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.
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.
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.
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.
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
Background
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:
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.
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. 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:
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:
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! 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:
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:
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:
Friday Workshops
At U.B. Berkely (Boalt Hall), a conference entitled Earl Warren and the Warren Court: A Fifty-Year Retrospect. Speakers include Jesse H. Choper, Malcolm M. Feeley, Bruce E. Cain and Melissa Anderson, Yale Kamisar, William W. Van Alstyne, Gordon Silverstein, Scott Bice, James Browning, Vicki C. Jackson, Charles McCurdy, Dan Rodriguez, Lawrence M. Friedman, Harry N. Scheiber, Goodwin Liu, and Susan Sterett. At the SUNY Buffalo, Nicola Lacey, LSE, presents Causation and the Limits of Linguistic Philosophy in Anglo-American Law. At MIT Philosophy, Ruth Chang, Rutgers University, presents Can Desires Provide Reasons for Action?. At the University of Texas, a conference entitled Avenues in Comparative Constitutional Law starts today. At Tulane, the Politics, Philosophy and Economics Conference begins today. Speakers include Sam Scheffler, Marc Fleurbaey, John Roemer, Allen Buchanan, Philip Pettit, & Eric Rakowski. At Oxford's Philosophical Society, Robert M Adams presents Idealism Vindicated. 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:
Schizer on Section 1091 David Schizer (Columbia Law School) has uploaded Scrubbing the Wash Sale Rules to SSRN. Here is the abstract:
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:
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:
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)
brought to you by Quizilla Procedural Justice I've just fiished a new paper entitled Procedural Justice. Here is the abstract:
Thursday Workshops
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:
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:
Two by Ferrell Allen Ferrell (Harvard Law School) has two new papers on SSRN:
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:
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:
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:
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:
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:
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:
Balkin on the FMA & the Other Thirteenth Amendment Check out Balkin here. Here is the text of the "other" Thirteenth Amendment:
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:
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:
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:
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:
Wednesday Workshops
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:
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:
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:
Tuesday Workshops
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:
Penalver on Regulatory Taxings Eduardo M. Penalver (Fordham University - School of Law) has posted Regulatory Taxings on SSRN. Here is the abstract:
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:
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:
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:
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