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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2011 - 04/01/2011 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Friday, April 30, 2004
Entry Level Hiring (Update #27, Last Updated on May 3) Information on entry level hiring still continues to come in. So far 61 law schools have reported. Email me at lsolum@sandiego.edu if you'd like to add to the list or if you have a correction. My thanks to everyone who has generously shared information with me so far. Here is are some interesting numbers:
Adam Chodorow (JD Virginia & LLM NYU) Linda Demaine (JD Arizona & PhD Psychology Arizona State) Aaron Fellmeth (JD Yale) Sandeep Gopalan (JD National Law School of India & DPhil Law Oxford) Orde Kittrie (JD Michigan)
Donald Kochan (JD Cornell) Francine Lipman (JD UC Davis & LLM NYU)
Michael Scodro (JD Yale Law) Carolyn Shapiro (JD Chicago JD)
Bernadette Meyler (JD Stanford & PhD English UC Irvine)
Neil Siegel (JD & PhD Berkeley)
Michael Kang (JD Chicago & PhD Government Harvard) Julie Seaman (JD Harvard)
Curtis Bridgeman (JD & PhD Philosophy Vanderbilt) Jonathan Klick (JD & PhD Economics George Mason)
Amanda Tyler (J.D. Harvard)
Ethan Yale (JD Tulane & LLM NYU)
Lauren Willis (JD Stanford)
Stephanie M. Stern ( JD Yale)
Scott A. Moss (J.D. Harvard)
Noga Morag-Levine (LL.B. Hebrew; Ph.D. Jurisprudence and Social Policy, UC Berkeley)
David Stras (JD & MBA Kansas)
Jide Nzelibe (JD Yale)
John Oberdiek (JD & PhD Philosophy Penn)
Frank Pasquale (JD Yale & MPhil Oxford Politics)
Nicole Porter (JD Michigan)
Terry Turnipseed (JD & LLM Georgetown)
David Hoffman (JD Harvard) Duncan Hollis (JD Boston College)
Aric Short (JD Texas)
Jennifer Chacon (JD Yale) Carlton Larson (JD Yale) Donna Shestowsky (JD Stanford & PhD Psychology Stanford)
Noah Zatz (JD Yale)
Adam Samaha (JD Harvard)
Clare Huntington (JD Columbia)
Erica Hashimoto (J.D. Georgetown)
David Law (JD Harvard & PhD Political Science Stanford) Lisa Ramsey (JD UCLA)
Josh Eagle (JD Georgetown) Joel Samuels (JD Michigan)
Melissa Waters (JD Yale)
Michael Dimino (J.D. Harvard)
Nancy Combs (JD Berkeley) Erin Ryan (JD Harvard)
John Radsan (JD Harvard) And JD students are also hired in other disciplines. For example, Wharton Legal Studies reports that they have hired Kevin Werbach (JD Harvard). Note: This list is for entry-level hires only. I have arbitrarily grouped first degrees in law as JDs, even though many non-US law schools award the LLB as the first law degree. Several readers have asked that I collect data on subject-matter areas, but my judgment is that this data is both too soft to be reliable and too difficult to collect. My thanks to everyone who has contributed information! Values and Virtues at the University of Dundee I will be in Dundee Scotland this weekend attending the Conference on Values and Virtues at the University of Dundee. The conference on Values and Virtues: Aristotelianism in Contemporary Ethics begins today at the University of Dundee in Scotland and continues through May 2. Here is the program:
Friday Calendar
At SUNY Buffalo, Jack Schlegel, UB presents Notes Toward a General Theory of Civil Liability and the Escape from the Plaintiff's Lawyer's Nose At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective. At the University of Texas, the first day of a Conference on Constitutional Concepts. At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning. Conference Announcement: Homeland Security & Civil Liberties
Call for Papers: New Journal ethic@
Thursday, April 29, 2004
Classroom Technology Department The New York Times has a very interesting story discussing interactive classroom technology & Paul Caron of TaxProf Blog. Paul uses a device that permits students to take in-class quizzes. Here's an excerpt from the story:
Thursday Calendar
And at UCSD's Law, Economics, and Politics Series (with USD), Kim Scheppele presents States of Exception and the Temptations Of 9/11 on the UCSD campus. And also in the USD/UCSD LEP series, Eric Talley (USC) presents Corporate Governance, Executive Compensation and Securities Litigation on the USD campus. At Yale's Legal Theory Workshop, Kendall Thomas is speaking. At the University of Texas, Seana Shiffrin, UCLA, speaks to the Constitutional & Legal Theory Colloquium. Legal Theory Jobs Australian National University has an opening in Legal Theory. Here is the announcement. Muñoz on Madisonian Religious Liberty Vincent Phillip Muñoz (North Carolina State University - Department of Political Science & Public Administration) has posted James Madison's Principle of Religious Liberty (American Political Science Review, Vol. 97, No. 1, pp. 17-32, February 2003) on SSRN. Here is the abstract:
Wallace on the Publicity of Reasons R. Jay Wallace has posted The Publicity of Reasons. Here is a bit:
This is an intriguing thesis, which I have come to think is probably both correct and important. Conference Announcement: Feminist Philosophy in the Analytic Tradition
Call for Papers: BSET 2005
Call for Papers: Race, Ethnicity, Racism
Conference Announcement: Public Trust and Private Interest
Wednesday, April 28, 2004
Blogging from Oxford 2: Danny Priel at the Jurisprudence Discussion Group
As I am composing this post, I’m in Oxford at the Danson room in Trinity College. It is 8:00 p.m. on Tuesday, rather late for an event to begin in my opinion! Our speaker is Danny Priel (D.Phil. Candidate Oxford) and his topic is Farewell to the Exclusive-Inclusve Debate. The JDG papers are usually posted online and Priel’s paper is quite interesting: you can download it here. Indeed, Priel’s paper was so provocative, that I seem to have developed a renewed interest in the debate between inclusive and exclusive legal positivists—a result that Priel may consider perverse. Inclusive and Exclusive Legal Positivism Priel begins with some introductory remarks, noting the fact that even in Oxford, the debate between inclusive and exclusive legal positivism is considered to be “boring.” He then gets down to the paper. His paper begins with an elegant and concise summary of the principle positions in the inclusive-exclusive debate:
Raz’s Argument for Exclusive Legal Positivism Priel provides a very nice summary of Raz’s argument, which is worth quoting:
The Case for Inclusivism Priel also provides a less crystalline but nonetheless nifty summary of the case for inclusivism, identifying three lines of argument. What follows is a truncated version: Priel’s Argument Priel’s claim is that the debate between inclusivists and exclusivists is based on a false assumption:
Here is a slightly different version of my worry. Priel claims we don’t know what the “correct morality” is, but this claim is most plausible as applied to thin moral concepts (e.g. “right,” “good,” and “just,” but dubious in the context of thick moral concepts, such as “cruel” or “kind.” When it comes to thin moral concepts such as “justice,” there is a good deal of disagreement both among theorists and ordinary folk. But with respect to thick moral concepts, there is substantial more agreement, and especially strong agreement on the core or paradigm cases. Thus, we know that torture is cruel. Moreover, there are relatively fixed criteria for the application of many of the thick moral concepts. For an action to be cruel, it must inflict needless suffering. Of course, there may be borderline cases of cruelty, but many nonmoral concepts have borderline cases. An Example: The Death Penalty in 1850 Priel then provides an example. Suppose we were to discover that the best theory of morality holds that the death penalty is “cruel and unusual punishment.” Nonetheless, Priel maintains, we are likely to believe that a judge who upheld the death penalty in 1850 made a decision that is legally correct. And of course, if a trial judge were to have done otherwise in 1850, he would undoubtedly have been reversed on appeal. What is Priel’s positive account of such more terms like “cruel”:
Objections I won’t summarize the remainder of Priel’s paper, which dealt with a variety of potential objections to his position, including, for example, the possibility that moral norms might be included in the rule of recognition. In the question and answer period, I asked Priel about the two worries expressed above. What, for example, would Priel say about a variant on his 1850 death penalty case. Suppose that it is 1850 and a court of last resort decides a case involving a very unpopular criminal defendant who is sentenced to a punishment that would fall under the thick moral concept of cruel, for example, torture. The court is swayed by the pervasive anger at the defendant and upholds the sentence. Critics of the decision might say, “That decision was legally incorrect. The Constitution forbids actions that are properly classified as coming under the thick moral description “cruel. Torture is cruel. So this decision was wrong.” Replying to the question, Priel first noted that he could accept the point that trial judges are bound by precedent and simply alter his example so that it involved a court of last resort. This move is entirely fair, I think. He then noted that that the distinction between thick and thin moral concepts posed a more serious challenge to his position. Priel noted that his position assumes moral realism—a view that Priel believes is held in common by the participants in the inclusive-exclusive debate. [I believe that I’ve gotten this right, but I am not quite sure how wide in scope Priel’s attribution was meant to be.] Given moral realism, it can, in principle, turn out that everyone is wrong about a moral question, e.g. the question whether a given punishment is cruel But positivists, Priel argues, are committed to the view that in some important sense, when the whole legal culture believes that a punishment is not cruel, then it is not legally cruel. But one needs to be very precise here. No one needs to dispute the claim that when a court of last resort decides a case and that decision becomes final, then the decision is legally binding. And that has consequences. For example, the decision will bind the parties to the dispute and the precedent that is set will bind lower courts in a common law system. But none of that is inconsistent with the assertion that the decision made by the court of last resort was nonetheless mistaken as a matter of law. And if the basis for the mistake was that the court misapplied the thick moral concept of cruelty, then it would seem that the decision was incorrect because the court misapplied a moral standard. Of course, this argument may fail for the reasons Raz identifies, but Priel may not avail himself of this move, since it is his claim that Raz is mistaken to believe that terms like cruel are truly moral terms. Priel needs to argue that “cruel” as used in a constitutional provision that forbids “cruel punishments” is not a moral concept at all, but is instead a legal concept, for which the criteria that determine correct application are internal to the law and fixed by the conventions of legal practice. Priel's view would seem to lead to the conclusion that the legal meaning of cruel changes in the case where (1) the legal culture says that torture is not cruel in 1850, but (2) then says that this decision was mistaken. This would seem to lead Priel to the awkward conclusion that the later assertion that the 1850 decision was a mistake is itself “mistaken." Despite the legal communities attribution of legal mistake, there was not true mistake at all. Instead, the 1850 decision was correct, but the law changed. The change-in-law interpretation, it strikes me, misses the force of the claim that a court of last resort has made a legal mistake. There was also an interesting discussion of the question whether Priel’s argument generalizes to nonmoral concepts such as causation. If the entire legal culture believes at time T1 that X does not cause Y, but we later (time T2) discover that this belief was based on a scientific error, are we tempted to say that as used by courts, “cause-in-fact” is a legal concept and not a scientific concept and that the legal concept of cause changed between T1 and T2? Priel seemed willing to bite this bullet—arguing that the legal concept of cause may indeed be different than the scientific concept. Well, Priel is right about that, the concepts may be different, but that does not entail the conclusion that there was no legal mistake at time T1. Many more interesting questions were asked and answered, and I certainly learned from Priel’s paper and the very good discussion that followed. Blogging from Oxford, Part One: Foot on Morality and Goodness
I've been walking all day, and I only got an hour or two of sleep on the red eye from Los Angeles, but I find that I am not the least bit tired. Foot was my teacher twenty some odd years ago, and she is one of my intellectual heroes. So, I am looking forward to this with great anticipation and much fondness. Robert M. Adams has just come into the room, another former teacher of mine from UCLA, and a long-time colleague of Foot's. We both remark how glad we are to have made this event. Foot Begins After a short introduction, Foot says she doesn't know where to begin. She says she will say a little about where she is coming from. There has been a notorious battle, with R.M. Hare about the boo-hooray theory, which has received a brilliant restatement by Gibbard. Foot rejected the move to the sharp distinction between descriptive and evaluative propositions. She remembers when she rejected Hare's view. It was in a conversation with Elizabeth Anscombe in which she replied to an example that it was a mixture of description and evaluation. "What?," said Anscombe. That was the beginning of Foot's project. It is entirely wrong to contrast fact and value. In Natural Goodness, she tried to give an account of evaluation as a special kind of fact. She was helped in this by an article by Michael Thompson. It is a view that connects good with life in such a way that if there had been nothing alive, good would have had no application. Foot thinks that although good can be used in so many different ways--good roots of tries, good actions, good weather, and so forth--there would be no good without life. In a lifeless universe, there would be no good or bad of any kind. That's where I'm coming from, says Foot. Foot parenthetically notes that she is known for changing her views, but that she doesn't think the lecture she gives today involve any changes. The Paper So now, Foot begins her actual paper. Today's problem is the problem of the letter writer (introduced momentarily) who is in a tight corner. This problem comes from a marvelous book called "Dying We Live." It is a book of letters written home by anti-Nazis who were condemned to death. They were allowed to write letters home. They are very touching, some long, some short. She quotes a letter from a farm boy from the Sudetenland. He wrote, "Dear Parents, I must give you bad news. I am condemned to death. We would not sign up for the SS. Both of us would rather die than become a member of the SS. I know what they do." This letter writer is in a tight corner. Was this a rational choice? On what theory of practical rationality can the rationality of this choice be made out? How can it be rational to do what is totally inimical to one's own good? (Of course, it might not be a tight corner, because the remorse might be so bad that it would be worse to go on living. But one can get rid of this argument, by imagining an amnesia drug. Amnesia, says Foot, is a real phenomenon. There is no amnesia drug now, but I infer that the point of Foot saying that amnesia is a real phemenon is to insist on the legitimacy of her amnesia-drug countermove to the remorse argument.). So we have now returned to the main question. Foot now asks whether virtue ethics could help with the problem of the tight corner. Foot notes that she herself is not a virtue ethicist, unlike Rosalind Hursthouse, Michael Slote, and Christine Swanton. She is opposed to virtue ethics, which is now all the rage in moral philosophy. Why? Foot's Rejection of Virtue Ethics The idea of virtue ethics seems to be that the primary moral judgments are inner states and actions derive their moral status from these. Of course, when an action is judged morally, intentions must be judged. Foot gives the example of a medal for courage given to a Scotsman who fell off a pier while drunk and as a result saved a drowning man. This medal was wrongly given, she observes. But virtue ethics goes much further than this, as when Christine Swanton says that moral goodness is a matter of fine moral states. Foot briefly argues that this view problematic, noting that when Swanton tries to specify the innter state for justice, Swanton specifies the inner state as "sensitivity to the genuine demands of justice." (My paraphrase of Foot's paraphrase--not a quote from Swanton.) Foot left it there, but I assume she thought the audience would conclude that Swanton's specification of the inner state was circular. Foot then notes that justice is the difficult virtue for virtue ethics to handle. And surely Foot is right about that! Inner states (or what the agent feels), says Foot, are often irrelevant. For example, schadenfreude (joy at others pain) is not always entirely bad. Rather than inner states, Foot claims, it generally is the nature of actions that determine what should and should not be done. So, when Anscombe talked about the morality of promises, she didn't talk about inner states but rather discussed the importance of one person binding herself to another. Another example is theft: the wrongfulness of theft is about depriving others of what they need and not about an inner state. One reason why Foot says she dislikes virtue ethics is that it seems to forget how much we rely on law, order, and decent behavior. This is one way in which virtue ethics skews our thought. The danger of taking virtues as primary is that it suggests a (false) solution to the problem of the tight corner. It is tempting to think that virtues, being dispositions, manifest one's values and hence can explain why one acts contrary to self interest. It is tempting to suppose that the reference to values solves the problem of acting virtuously in the tight corner. Is the point of a virtue that the disposition to act well is something that is present, even in the tight corner? The point being that this would explain why one could act rationally by acting on the basis for the reason provided by the virtue. Foot then asks a question, which undermines this account of the virtue-ethical solution to the tight corner. Her question is: "Wouldn't it be rational to at least try to act contrary to the virtue?" Virtue ethics doesn't have a real solution to the problem of the tight corner. Foot was moving rather quickly here, and I may have missed an element of her argument. Are we in trouble? Once again, Foot moves back to the main question. Are we in trouble? That is, do tight corner cases pose a difficulty for our understanding of the relationship between rationality and morality. Foot says that her present thought is that we aren’t in trouble. That is, Foot is claiming that there is no problem to be solved. As Foot puts it, she now thinks that it is not right to think that there is a problem about goodness and happiness. So today's paper, Foot says, is about why we aren't in trouble. The tight corner, where happiness and morality seem to conflict is not truly a problem. Warren Quinn and the Priority of Morality and Rationality How did Foot arrive at her new position on this issue? Foot says that her thinking was helped by the work of Warren Quinn. Although I never had a course from Quinn, I spent a good deal of time in his office and I was a witness to his brilliant participation in one of Foot's graduate seminars. Coincidentally, the seminar (held about 15 years ago as I recall was also on the problem of rationality and morality. Rationality and Morality Now, Foot summarizes an argument of Quinn's (from Rationality and the Human Good and Putting Rationality in its Place. The structure of Quinn's argument is idiosyncratic. Most philosophers start with a theory of rationality and then move to morality--the idea is that morality must answer to rationality. As I understand Foot, she is making a point about the relative priority of rationality and morality. But Quinn suggests that we should count a theory of rationality as deficient if it would endorse a shameful action. In other words, Quinn is arguing that rationality must answer to morality. That is, Quinn claimed that morality has priority over rationality. Foot notes that Quinn's argument was directed at neo-Humean theories, such as (1) the theory that rationality aims at maximizing desire satisfaction and (2) the theory that rationality aims at the agent's well-being. On either theory, it would be possible for morally disgraceful actions to be recommended as rational. Foot paraphrasing Quinn then asks, “Why, if this were true, would we think rationality is so important?” Or as I might put it a bit differently, “How could rationality have priority if it could lead to the recommendations of disgraceful action?” That is, Foot says, the command does not go from rationality to morality; it goes the other way, from morality to rationality. Natural Goodness Foot then moves on to a new stage in her argument. She makes a point about method. Some might suggest that we could start with indubitable facts about actions that are good or bad. That is, our initial premise could be that we know that such and such is wrong. To this proposed way of proceeding, Foot says “No.” We do not need to begin with what I might call bare intuitions about what is good and bad. Why not? Foot explains that in her recent book Natural Goodness, she argued for criteria for goodness and badness. Foot starts with facts about human life, and proceeds to derive the criteria from these facts. As I interpret her, Foot is claiming that her account of natural goodness does not rest, at bottom, on our bare intuitions about clear cases of good and bad. If this is roughly right, Foot then asks, “How do things stand between happiness and goodness”? A person's goodness and their good can come apart (as in the tight corner cases). Earlier in her career, Foot tried to give a special conception of happiness to handle this problem, but she abandoned this solution. In this paper, Foot is offering an alternative account of the relationship of good and goodness. To illustrate her approach, she suggests that we think about plants and animals. In animals, good and goodness are not closely connected. The good animal (e.g. healthy and strong animal) can act in ways that are not for its own good. Healthy bees sting and die young. Acting the way a bee should act can be bad for the individual bee. Birds that defend their nest sometimes decoy a predator from the nest and are killed. Is it the same with human beings? Foot says, she thinks that it is. Happiness as One Virtue Among Many It may seem shocking that the good human would be harmed because of her goodness. But, says Foot, this is not a true problem. Human beings are like those bees. Being a good human does not guarantee that one acts for one's own good. Why then did Foot see the tight corner as a problem? Foot mistakenly believed that one's own good was part of the structure of rationality’as part of the foundation. But now, Foot says, we should look for one's good in the building. One's good is the aim of one of many virtues. Foot now introduces a bit of terminology. "V sub h" is the virtue of one's own happiness. "V sub o" is the virtue of other's happiness. Foot then elaborates a bit on “V sub o.” Consider the case where we wish for our children's good. What does this mean? Foot gives the example of a contest with prizes. You will wish your children should earn the prize--there is nothing wrong with having this hope. But one would not wish for one's children to experience the joys of torturing others. Nor would one wish that one's children would experience the pleasures of a perpetual childhood. Insofar as happiness is identified with human good, the idea of it cannot be derived in any simple way from the idea of pleasures. A Virtue Directed at Happiness Foot now returns to the idea of “V sub h,” comparing it to other virtues, as in “V sub c” = charity and “V sub j” = justice. Someone who has “V sub h” acts for his own happiness. Foot says this virtue has no name. Elaborating a bit more, she says that “V sub h” is a virtue placed among other virtues. Each virtue's content is defined in part by its relationship to the other virtues. That is, the scope of one virtue determines the scope of the others. One cannot do charity by giving away the money one owes to another. An act of V sub h cannot be an unjust act, because the scope of V sub h is determined in part by justice. And on that point, Foot ends her paper, followed by sustained applause. A Query About V sub h Foot is extraordinarily careful, so it is always wise to take some time to digest her ideas. I did have a thought or two about what I take to be the new and important idea in the pape “V sub h,” the virtue that is directed at happiness. Initially, I think it is quite interesting to suppose that there is a virtue concept that would seem to play a quite central role in human life, for which there is no name. Our language is rich with vice and virtue words, and it seems rather odd that a central virtue would be missing from our vocabulary. This initial thought lead to another. Foot's picture is that V sub h is one virtue among many. That it is one room in the house--to use Foot's metaphor. This picture of the relationship between virtue and happiness is quite different from Aristotle's picture--at least as I understand Aristotle’s view. The Aristotelian picture is that happiness is constituted by a life of faring well and doing well, which means a life lived in reasonably favorable circumstance in which one engages in action that is in accord with the virtues. To return to the metaphor of the house, a happy life would be a life lived in a house with rooms for all the virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest). Happiness, for Aristotle, was not just one room in the house. I asked Foot a question designed to get at the difference between her picture and Aristotle’s. “If one had all the other virtues (courage, justice, benevolence, temperance, practical wisdom, and the rest) but lacked V sub h, what would be missing?” Foot’s answer began with her astonishment at the question: ?I?m surprised you asked that,? she said with the emphasis on that. At this point, I reverted to my undergraduate self, and thought for a moment, “Why did you ask that question, Solum?” Foot then noted that without happiness, a life would be empty. Consider, for example, a life lived in pursuit of celebrity, Foot suggested. This would be a dreadful life. I am sure that I am missing something important, because Foot’s answer did not seem fully responsive to my question. Someone who pursues celebrity, who puts external recognition far too high in the hierarchy of values would not, I think, be a person who does possess the full complement of the virtues. Caring too much for recognition by others is a vice that is distinct from not caring about one’s own happiness. Moreover, a person of practical wisdom would recognize that celebrity would be unsatifying as an end for one’s action--that it would not be a fruitful goal to pursue. Indeed, happiness can be thwarted by any of the particular vices, intemperance, bad temper, cowardice, and the rest. What my question was designed to elicit was some account of V sub h, that is, some account of what is distinctive about this virtue. I was trying to get Foot to say more about the content of “V sub h”. Foot did address this concern, by referring to the concept of “deep happiness.” Foot did not elaborate on what “deep happiness” is, but given what she did say, it would seem that deep happiness is related to the pursuit of projects that are truly worthwhile or significant. And of course, deep happiness does seem to require that one have a meaningful life plan that involves significant and worthwhile goals. There were many good questions, including one from Robert Adams. Finally, the time was up and the session ended. I was very happy to have had the opportunity to hear Foot once again! Philippa Foot remains a marvel to behold and I count myself as lucky to have learned so much from her. Lund & McGinnis on Lawrence v. Texas I have updated this post to correct a misinterpretation on my part of Lund & McGinnis, and also to suggest that their characterization of Barnett's position (as clarified) is incorrect. Anyone interested in constitutional theory should read this paper! And don't miss Randy Barnett's post on Lund & McGinnis.
I have only begun to think about this issue, but based on a cursory reading, McGinnis & Lund have an incomplete reply to the key element in Barnett's defense of Lawrence as articulated in his book, Restoring the Lost Constitution. Barnett does not claim that the Ninth Amendment creates rights against the states of its own force. As Lund & McGinnis recognize, Barnett's argument rests on the Privileges and Immunities Clause of the 14th Amnendment. Here is the "money" passage from Barnett's paper, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas:
In a footnote (footnote 129 on pages 43-44 of their paper), McGinnis and Lund contend that Barnett's position is that "the Ninth Amendment applies to state as well as federal laws." They contend that Barnett's position is that the Ninth Amendment is "incorporated" in the Privileges and Immunities clause. I am quite sure that this is not Barnett's position, but perhaps Barnett himself is in a better position to provide the textual evidence. It would be very odd indeed for the Ninth (which of its own force is a rule construction) to be incorporated as an "immunity" in the 14th. What would be much more plausible is that the conception of liberty and legitimate state power that is reflected in the Ninth Amendment is also reflected in the 14th. Let me emphasize that all of this is being done on the fly. A scholarly assessment of Barnett verus Lund & McGinnis would require much more work than I've done for the purposes of this post. McGinnis & Lund offer another argument, aimed at Barnett's distinction between liberty (outside the scope of the police power) and license (which may property be prohibited by government):
Tuesday, April 27, 2004
Gardner on Kutz John Gardner has a review of Christopher Kutz's book Complicity forthcoming in Ethics. You can download it here. And here is a taste:
Although his book is titled Complicity, Christopher Kutz does not compare and contrast these two modes of complicity. Nor does he explore either of them comprehensively. He focuses on one special case of complicity. It is the case in which people commit a wrong together that none of them commits in his or her own right. In such wrongdoing the only principal is a collectivity: a nation, a corporation, a team, a group. And the individuals who make up that collectivity are at most accessories to the collectivity’s wrong. Most of Kutz’s book is about the moral position of the individuals who make up the collectivity. Are they indeed complicit, and if so what follows? Conference Announcement: The Ethics of Global Warming
Tuesday Calendar
At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow. At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game. Monday, April 26, 2004
A Legal Scholar’s Journal, Part Two: Origins
On the Train to Oxford . . . I am composing this post on the train to Oxford. It just so happens that I had planned to be in the United Kingdom this week, for the conference on virtue ethics at the University of Dundee in Scotland. One of the disadvantages of doing the weekly Legal Theory Calendar is that I know about all the conferences and talks that I’m going to miss—leading to a very high regret quotient. But in this case, I felt quite fortunate, because I was able to plan to arrive in time to hear Philippa Foot, the distinguished moral philosopher, give a lecture entitled Happiness and Morality today. Thinking about Professor Foot (who I thought of as “Mrs. Foot,” no matter how un-PC that might be) takes me back more than twenty years . . . Dodd Hall . . . more than twenty years to the Philosophy Department at the University of California at Los Angeles. I still have very distinct memories of Foot’s course in metaethics. Along with Rogers Albritton, Tyler Burge, Thomas Hill, Greg Kavka, and Jean Hampton, Foot had a tremendous formative influence on my intellectual development. At the time, I recall being very attracted to Kantian moral philosophy, but Foot’s outlook on ethical theory must have struck a very deep chord. I still have a very vivid memory of the day that Foot introduced Elizabeth Anscombe’s essay Modern Moral Philosophy, an article that has had a profound influence on the direction of moral philosophy in the past fifty years. Anscombe’s article contained an important critique of Kantian and utilitarian approaches to moral philosophy. Of course, the objections that Anscombe made in 1958 are no longer state of the art. Both Kantians and utilitarians have developed clever, even brilliant replies, to her particular objections, but the sophisticated work of Derek Parfit, Samuel Scheffler, Onora O’Neill, Barbara Hermann, and Christine Korsgaard was still far in the future in late 50s and early 60s. Anscombe’s essay ended with the suggestion that moral philosophers look to Aristotle’s moral philosophy as an alternative to what looked like dead ends in the development of consequentialist and deontological moral theory. Virtue Ethics And sure enough, Anscombe’s suggestion was taken up, by Peter Geach (her husband), by Philippa Foot, and others. This early work lead to one of the most significant developments in contemporary moral philosophy—the emergence of what has come to be known as “virtue ethics.” (And virtue ethics has gone off in a very different direction than that take by Foot's work.) In the early 1980s, when I studied with Foot, it hadn’t yet become clear that virtue ethics was about to become a phenomenon, with dozens of books, hundreds and hundreds of articles, and conference after conference to follow. So while I was interested in virtue ethics and familiar with the key foundational articles, I found myself attracted to other ideas as I prepared to go to law school. I’d done a graduate seminar in Rawls’s political philosophy with Jean Hampton at UCLA, and while at Harvard Law School, I took advantage of the opportunity to take Rawls’s own course on his work. (To this day, Rawls remains a huge influence on my work.) If you’d asked me what my philosophical orientation was in 1984, the year I graduated from law school, I think I would have replied, “Rawlsian.” A Twist of Fate I might never have returned to virtue ethics, but for a twist of fate or two. One was the fact that my professional responsibility course at Harvard included a paper requirement, and it seemed quite natural for me to write a short paper on the implications of virtue ethics for legal ethics. But it was the second event that revived and intensified my interest in virtue ethics. I was invited to a conference on judicial selection at the University of Southern California in the late 1980s. My role was to comment on a paper by Fred Schauer (now at Harvard’s Kennedy School of Government but then at the University of Michigan). Schauer had written a very provocative essay, arguing that nonlawyers were qualified to become Justices of the United States Supreme Court—because the issues the Supreme Court decides are more political than legal in nature. I knew that I disagreed with that thesis. My first article [On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987)] was a critique of the indeterminacy thesis—the idea that law was politics. It seemed to me that judges ought to be selected for their possession of a set of moral and intellectual virtues—the ability to think through complex legal problems, common sense and good practical judgment, a dedication to the rule of law, as well as the general moral virtues—temperance, a good temper, courage, and so forth. The Birth of Virtue Jurisprudence And this quite naturally led me back to Philippa Foot and virtue ethics. My reply to Schauer [The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 Southern California Law Review 1730 (1988)] was the beginning of a project that continues today. I began to think systematically about the possibility of developing a theory of law that drew upon the framework of virtue ethics and worked out the consequences for normative jurisprudence. Phronesis and Equity But this wasn’t easy. There are now several different strands within virtue ethics. For example, there is a Humean strand associated with Michael Slote. But the dominant approach to virtue ethics among contemporary moral philosophers is Aristotelian (or neo-Aristotelian). This was the strand of virtue ethics to which I was drawn. One of the really nifty things about Aristotle’s ethics is his account of phronesis, the virtue of practical wisdom. This tied in nicely to my intuition that judges needed common sense and good practical judgment. I began to realize that Aristotle’s ideas about practical wisdom had strong echoes in the work of some of the legal realists. When I read Nancy Sherman’s book, The Fabric of Character, I could see an obvious connection between her notion of moral vision and Karl Llewellyn’s idea that good judging required situation sense. And all of this tied into Aristotle’s explication of equity in Book V Chapter 10 of the Nicomachean Ethics. This work resulted in a paper I gave at the annual meeting of the American Society for Political and Legal Philosophy [Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994)]. The Problem of Justice Developing an account of phronesis and equity was really just a warm up exercise. I began to realize that virtue jurisprudence required a solution to a problem that many virtue ethicists have avoided. One could hardly claim to have developed a theory of judicial virtue without some account of the virtue of justice. But at this stage in the game, I realized that offering such an account was not going to be easy. I had read Bernard Williams’s famous article, which seemed to offer a devastating critique of Aristotle’s account of justice as a virtue. Moreover, I began to notice that philosophers tended to avoid Book V of the Nicomachean Ethics. I sat in on Gavin Lawrence’s course on Aristotle’s ethics at UCLA, and sure enough, he announced that we would not cover Book V. I sat in on Chris Korsgaard’s graduate seminar on Aristotle’s ethics at Harvard, and (no surprise to me by then), she did not cover Book V. Here’s the problem in a nutshell. Aristotle understands the moral virtues as a certain kind of disposition with respect to a morally neutral emotion. So courage is a disposition with respect to the morally neutral emotion of fear, and good temper is a disposition with respect to the morally neutral emotion of anger. Someone who is disposed to disproportionate fear has the vice of cowardice; someone who is disposed to react to danger without sufficient fear has the vice of rashness. Courage is a kind of mean between these two opposing vices. But justice doesn’t seem to fit this pattern. What is the morally neutral emotion? And what are the two opposing vices? Bernard Williams made a convincing case that what we call the virtue of justice doesn’t have a distinctive relationship with any emotion at all. Rather, justice seems to be the disposition to do what is just. And what is just, according to Williams, has to be given to us by some theory (e.g. a theory of distributive or corrective justice). Stuck I was stuck on this problem for quite some time—years, not hours, days, or weeks. I could see various possible solutions, but none of them seemed satisfactory. And I knew that this was not a new problem. Working out Aristotle’s views on justice was a notoriously difficult problem for Aristotle scholars and for contemporary neo-Aristotelian virtue theorists. In the next installment of A Legal Scholar’s Journal, I’ll say a bit more about the origins of the project and how I came to see a solution to the problem of justice. I’ve posted a guide to the installments in this series on the Legal Theory Annex. The next installment should be up in a few days. See you then! Monday Calendar
At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation. At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking. At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness' Correction, Jack Balkin's talk at Cardozo is tomorrow! Sunday, April 25, 2004
Legal Theory Calendar
At UC Berkeley's Law & Economics workshop, Dan Rodriguez is presentingRethinking the Appropriations Canon of Statutory Interpretation. At the University of Chicago's law and philosphy series, Robin West (Georgetown) is speaking. At the University of Texas, David Sugarman, Princeton, presents 'LA Law' Encounters 'Rumpole of the Bailey': The Impact of Americanization, Europeanization and Globalization on English Legal Culture and 'Englishness'
At Cardozo, Jack Balkin will speak on "Plessy, Brown, & Grutter: A Play in Three Acts," at 6:00 p.m. at the Cardozo Law School. Free and open to the public. Reception to follow. At the University of Chicago's law and economics series, Jason Johnston, Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School, presents Tradeable Pollution Permits and the Regulatory Game.
And at UCSD's Law, Economics, and Politics Series (with USD), Kim Scheppele presents States of Exception and the Temptations Of 9/11 on the UCSD campus. And also in the USD/UCSD LEP series, Eric Talley (USC) presents Corporate Governance, Executive Compensation and Securities Litigation on the USD campus. At Yale's Legal Theory Workshop, Kendall Thomas is speaking. At the University of Texas, Seana Shiffrin, UCLA, speaks to the Constitutional & Legal Theory Colloquium.
At Oxford's faculty of law, Timothy J. Muris, Chairman US FTC presents Current issues in competition and consumer policy: an international perspective. At the University of Texas, the first day of a Conference on Constitutional Concepts. At the The Danish Research School in Philosophy History of Ideas and History of Science, a conference entitled Moral and Legal Reasoning. Legal Theory Lexicon: Holism
As always, the Legal Theory Lexicon is aimed at law students (especially first year law students) with an interest in legal theory. And by the way, good luck on your exams! The Law is a Seamless Web The idea that the law is a seamless web is familiar to almost every law student, but what on earth does this phrase mean? I think the best initial approach to this idea is to place it in the context of a common-law system. Suppose we have an unsettled question of law (e.g. a question about proximate causation in tort law). The question is unsettled in our jurisdiction, so there is no binding precedent—no prior decision of a higher court addresses the issue. But the lack of binding precedent does not imply that precedent is irrelevant to our question. The judge deciding our case with a tricky proximate cause question will want to look at the cases that deal with analogous issue. Her search for relevant case law might begin with cases on causation in tort law, but from there, it could lead to other issues and distinct doctrinal fields. For example, causation in tort is analogous to causation in criminal law. So our judge might base her reasoning in part on the way an analogous question was decided in the criminal context. And causation also arises in a variety of other legal contexts, leading our judge to move from fields that are closely related to torts, to more distant topics, including environmental law, administrative law, or even tax. Moreover, questions of proximate causation are only partly about causation, they also involve judgments about responsibility and reasonableness of conduct. In a common law system, the law is a seamless web in the sense that common-law ideas connect with one another in complex relationships of consistency and mutual support. A tremor in one region of the web of the law can in principle resonate in other region. Coherence and Holism The idea that holism involves wide and deep relationships of consistency and mutual support can be captured by introducing a related notion coherence. We might say that legal holists believe that a principle of coherence applies to the law as a whole. Each proposition of law ought to be consistent with every other proposition. Coherence can require more than mere consistency, however. A system of law achieves coherence at a deeper level if the normative justifications for legal propositions are consistent and mutually supporting. Cohererence can be local or global. The theory that the law is a seamless web can be rephrased as “the law is globally coherent,” and we might call that view “global legal holism.” Herculean Holism Ronald Dworkin’s theory, “law as integrity,” takes the idea that the law is seamless web to its logical conclusion. Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the basis of the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole in order to decide any particular case. Given the holistic assumption that a change anywhere in the law can produce consequences everywhere, Hercules must constantly revise his theory—checking to assure himself that a recent change in the law of trusts does not have consequences for the best interpretation of the reasonable person standard in torts. Of course, actual judges are not like Hercules in this regard. No actual judge could possible construct a theory of the whole law of her jurisdiction. Actual judges must make do with theories that are local rather than global in nature. This is not to say that no actual judge has a tacit (or even partially explicit) view about the way the law hangs together as whole. Indeed, some real world judges have views that account for many different regions of the law. The most intellectual judges (Richard Posner, for example) have comprehensive legal theories that provide consistent explanations across many different doctrinal fields. But even these Herculean judges cannot actually produce a theory that fits and justifies all of the law—that would take longer than a human lifespan permits and most of the work would be terribly dull. Holism versus Particularism So far, I’ve been presenting a fairly sympathetic view of legal holism. But holism is a controversial view in the law. One might believe that holism is domain specific. That is, it might be the case that all of tort law hangs together, but that tort law is a more or less closed system. It could be the case that criminal law operates on a different set of principles than those that operate in tort, and hence that conclusions reached in criminal law are different from those reached in tort law on analogous questions. Of course, the domain of coherence could be a higher or lower level of generality than doctrinal field. Perhaps, perhaps all of private law is coherent, but public law operates on different principles. Alternatively, perhaps the common law and statutory law form two different fields—each coherent within its own realm but not consistent with each other. Moving to the other end of the spectrum, it might be that the law governing the tort of negligence is coherent, but that negligence and battery operate on entirely different principles. At the opposite end of the spectrum from global legal holism (“The law is a seamless web.”) there is at least logical space for a local legal particularism (“Take each case on its own merits.”). Is Holism Normative, Descriptive, or Interpretive? Before we come to a close, let’s address one final question: what kind of theory is legal holism? You may have notice that I’ve been deliberately ambiguous in my phrasing of holist claims using locutions like “is or ought to be.” One view of global legal holism is that it is a normative claim: the law ought to form a seamless web. Why? Well, that’s a big question, but one cluster of reasons for preferring consistency in the law centers around the rule of law values of predictability, certainty, and publicity. Another view of global legal holism is that it is a descriptive theory. As a matter of fact, judges (in common law systems) strive for consistency. The phrase—the law is a seamless web—is couched as a descriptive claim. Of course, this will be a special sort of descriptive claim, because no one thinks that the law actually is fully consistent at the global level. Yet another view of global legal holism is that it an interpretive theory. On this view, legal holism bears a relationship to the idea of the hermeneutic circle. The meaning of any given legal rule must be interpreted in light of the whole set of rules, and the meaning of the whole set depends on the meaning of the particular members. On this view, holism is quasi-descriptive and quasi-normative: legal interpretation both is imperfectly holistic and legal interpretation aims at global consistency. Conclusion The distinction between holism and particularism is quite useful. Once you begin to look, you will quickly find that many legal arguments depend on implicit assumptions about the presence or desirability of coherence in the law. In particular, it often edifying to look for how some legal arguments turn on assumptions about whether coherence should be global or local. Once, again, good luck on your finals! |