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. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? 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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Monday, May 31, 2004
Archibald Cox Archibald Cox, the great scholar of labor and constitutional law, passed away Saturday at the age of 92. Here are some of the stories: Baltimore Sun, NPR (audio), Boston Globe, New York Times. I had Cox for two classes at Harvard Law School, Labor Law and First Amendment. I took Labor Law from Cox my first year as an elective, and Cox made a huge impression one me. My early teaching style drew heavily on Cox as a model. I especially enjoyed his very rigorous, intellectually demanding approach, which required a deep engagement by students who wanted to keep up with Cox. Cox was both a mentor (he wrote many letters of recommendation) and a personal hero. He lived a long life, full of accomplishment and goodness. He was a wonderful teacher and a formidable lawyer. He will be remembered, of course, for his role in Watergate and as Solicitor General of the United States, but I will always remember the kindly face, the old and many times mended suits, and the pick up truck that Cox drove to Harvard. He was a giant. More on the ICANN Budget I found this quite interest. Europe sticks up two fingers at ICANN budget by Kieren McCarthy. Here is a taste:
Weekend Update On Saturday, the Legal Theory Bookworm recommended two classics by Jon Elster and the Download of the Week was Against Global Governance in the WTO by John O. McGinnis and Mark L. Movsesian. On Sunday, the Legal Theory Calendar previewed this weeks talks and conferences and the Legal Theory Lexicon topic was "The Internal Point of View." Monday Calendar
McDonnell on the Death Penalty and Terrorism Thomas M. McDonnell (Pace University School of Law) has posted The Death Penalty - An Obstacle to the War against Terrorism? (Vanderbilt Journal of Transnational Law, Vol. 37, No. 353, 2004) on SSRN. Here is the abstract:
Juergens on Emotion and Community as Factors in Professional Excellence for Lawyers Ann Juergens (William Mitchell College of Law) has uploaded The Role of Emotion and Community in Lawyers' Professional Excellence (Clinical Law Review, Forthcoming). Here is the abstract:
Setiya on the Ethics of Efficiency Kieran Setiya has posted Is Efficiency a Vice?. Here is a taste:
Dari-Mattiacci and De Geest on Judgement Proofness Giuseppe Dari-Mattiacci and Gerrit De Geest (George Mason University - School of Law and University of Utrecht - Utrecht School of Economics) have posted Judgment Proofness under Four Different Precaution Technologies (Journal of Institutional and Theoretical Economics, Forthcoming) on SSRN. Here is the abstract:
Krieger on Professionalism and Personal Satisfaction Lawrence S. Krieger (Florida State University College of Law) has posted The Inseparability of Professionalism and Personal Satisfaction (Clinical Law Review, Forthcoming). Here is the abstract:
Call for Papers: Genocide, Collective Guilt and Reparations
Call for Papers: Journal of Philosophy, Science & Law
Sunday, May 30, 2004
Legal Theory Calendar
Legal Theory Lexicon: The Internal Point of View
Internal and External What is the difference between internal and external perspectives on the law? Obviously, we are dealing with a metaphor here. The idea is that one can look at the law from the inside or from the outside. Even if you have never encountered this distinction before, the intuitive idea is fairly clear. The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system. Here are some examples:
--Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this. Rules and the Internal Point of View The internal point of view may have additional significance to legal theorists. One can argue that legal rules cannot be described from a purely external point of view. Huh? Imagine that you are an anthropologist from Mars, observing an earthly legal system. You would be able to note various regularities in behavior, but so long as you stuck to the purely external point of view, you would not be able to say anything about the content of the laws. In order to do that, you would need to ask the question "What is the meaning of the these legal texts and actions?" And to say anything about meaning, you would need to assume (at least hypothetically) something like the internal point of view. You would need to ask the question, "What does these behaviors are markings mean to those who are inside the practice of law?" If this argument is correct, then important consequences follow. Legal theorists are interested in legal theory. If the internal point of view is a necessary prerequisite for understanding the legal significance of the behavior of legal actors, then it would seem to follow that all legal theory requires that the theorist be able to assume the internal point of view at the stage where the theorist describes the legal phenomenon that are the object of study. Let me give an example of this rather abstract point. Suppose you want to develop a causal theory of tort law. You want to argue that there is an economic explanation of the emergence of negligence (as opposed to strict liability) as the primary standard of care in tort. The details of the theory don't matter, but let's assume you believe that inefficient legal standards create incentives for litigation and that a quasi-evolutionary process leads to the selection of efficient standards. And of course, you would need to argue that negligence is efficient. This theory is primarily stated from the external point of view, but it also relies on the legal meaning of the distinction between "negligence" and "strict liability"--concepts that can only be understood from the legal point of view. The central idea here is that the external point of view can describe the behavior of legal actors, but the internal point of view is required to understand the meaning of legal actions. Conclusion The distinction between the internal and external point of views is one of the basic ideas in legal theory. When you first begin to construct theories about the law, you should ask yourself, "Am I looking at this area of the law from the internal point of view or am I taking a perspective that is external to the law?" For more on theory construction, you might also want to look at an earlier post in the Legal Theory Lexicon series: Legal Theory Lexicon 016: Positive and Normative Legal Theories Saturday, May 29, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends two classics by Jon Elster. The first is Sour Grapes : Studies in the Subversion of Rationality. Here is a description:
Download of the Week The Download of the Week is Against Global Governance in the WTO by John O. McGinnis and Mark L. Movsesian (Northwestern University - School of Law and Hofstra University). Here is the abstract:
SSRN Top Downloads SSRN is experiencing technical difficulties & their top download lists have not been updated since early. The overall list for all of SSRN is working however, and it includes three papers of interest to legal theorists:
Number 4 is The New Surveillance by Sonia Katyal (Fordham) Number 5 is The Aretaic Turn in Constitutional Theory Friday, May 28, 2004
Bainbridge on the Martial Virtues Stephen Bainbridge has an intriguing post on Iraq and the martial virtues:
Friday Calendar
Forty Years of Jury Research Author Meets Reader: Social Citizenship and Workfare in the United States and Western Europe: The Paradox of Inclusion, by Joel Handler Innovative Approaches to Legal Theory Reconceptualizing the Role of Judges: Past, Present, and Future Cyberlaw and Cyberspace Norms and Contracting Practices Courts and Democratic Politics: On the Team or On the Sidelines? Denning and Ramsey on Executive Preemption in Foreign Affairs Brannon P. Denning and Michael D. Ramsey (Cumberland School of Law and University of San Diego School of Law) have posted American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
Bainbridge on LLC Veil Piercing Stephen M. Bainbridge (University of California, Los Angeles - School of Law) has posted Abolishing LLC Veil Piercing on SSRN. Here is the abstract:
Revesz & Stavins on Environmental Law & Policy Richard L. Revesz and Robert N. Stavins (New York University School of Law and Harvard University - John F. Kennedy School of Government) have posted Environmental Law and Policy on SSRN. Here is the abstract:
Anderson on Intuitions in Moral Theory James Anderson (University of San Diego) has uploaded A Critical Role for Intuitions in Moral Theory. Here is the abstract:
Setiya on Hume on Practical Reason Kieran Setiya has uploaded Hume on Practical Reason (forthcoming in Philosophical Perspectives). Here is a taste:
Basinger on Religious Pluralism David Basinger's article entitled Religious Diversity (Pluralism) is now available on the Stanford Encyclopedia of Philosophy. Here is a taste:
Faguet on Altruism and Empire Jean-Paul Faguet (London School of Economics - Development Studies Institute & Centre for Economic Performance) has posted Building Democracy in Quicksand: Altruism, Empire and the United States (Challenge, Vol. 47, No. 3, pp. 73-93, June 2004) on SSRN. Here is the abstract:
Mullin & Malani on Joint & Several Liabily's Effect on Bankruptcy Charles Mullin and Anup Malani (Vanderbilt University - Department of Economics and University of Virginia - School of Law) have posted The Effect of Joint and Several Liability on the Bankruptcy Rate of Defendants: Evidence from Asbestos Litigation. Here is the abstract:
Thursday, May 27, 2004
Internet Governance Department If you haven't already done so, take a look at ICANN grows up at last by Kieren McCarthy in The Register. Here is a taste:
Rappaport on O'Connor Over at The Right Coast, Mike Rappaport has a very nice post on Justice O'Connor's view of federalism. Here is a taste:
Thursday Calendar
Lawyers and Social Movements: Political and Legal Advocacy Property as Information Language and Law 1: Juries and Problems of Language Liberties in the Age of the Crusade Against Terrorism Law and Society Meets Law and Economics At University College, London, the Judith Jarvis Thompson (MIT) completes her Shearman Lectures, Reasons for Acting, Wanting, Admiring, Believing,..... Co on Section 337 Patent Cases Catherine Y. Co (University of Nebraska at Omaha - Department of Economics) has posted How Valuable are the Patents Behind Section 337 Cases? (The World Economy, Vol. 27, No. 4, pp. 525-539, April 2004) on SSRN. Here is the abstract:
Baicker and Jacobson on Forfeiture Katherine Baicker and Mireille Jacobson (Dartmouth College - Department of Economics and University of California, Irvine - Department of Planning, Policy and Design) have posted Finders Keepers: Forfeiture Laws, Policing Incentives, and Local Budgets on SSRN. Here is the abstract:
Wednesday, May 26, 2004
Conference Announcement: Democracy & Pluralism
Eric Muller on Legal Advice & Interrogation in Iraq I am impressed by the Eric Muller's very measured post, here. Wednesday Calendar
At University College, London, the Judith Jarvis Thompson (MIT) continues her Shearman Lectures, Reasons for Acting, Wanting, Admiring, Believing,..... At the American Enterprise Institute, Did Workers Pay for the Expansion of Products Liability Law? with Alexander (Sasha) Volokh, formerly of the Volokh Conspiracy! Here is the link to download Sasha's paper! Layers Principle Hits the Stands The Layers Principle: Internet Architecture and the Law by Minn Chung and myself is now available in print (79 Notre Dame L. Rev. 815 (2004)) and on Westlaw. For some commentary, you can surf here, here, and especially from Ed Felten here. You can listen to the audio of a talk I gave at Stanford here. Ellerman on Property Theory David Ellerman (University of California, Riverside - Department of Economics) has posted Introduction to Property Theory on SSRN. Here is the abstract:
Tuesday, May 25, 2004
Justifications and Excuses at Rutgers At the Rutgers-Camden Institute for Law and Philosophy, today and tomorrow, there is a conference entitled Justifications and Excuses: Legal and Philosophical Perpsectives. Here are the papers with links:
Lesser Evils: A Closer Look at the Paradigmatic Justification Larry Alexander On the Supposed Priority of Justification to Excuse Douglas Husak Consequentialist Justifications Within Deontological Ethics: The Royal Road to Objects of Categorical Obligation Michael S. Moore Equality and Individuation: The Case for Juries and Determinate Sentencing Stephen J. Morse Hatch on the Compromise The Washington Times has a story titled Bush deal for court nominees irks conservatives, but real meat of the story is actually a quote from Senator Hatch:
"Those kinds of arguments are beneath the dignity of comment," he said. "We were not going to get any confirmed. "The president was not going to make any more recess appointments anyway," Mr. Hatch said. "It was an absolute 'gimme.'" Tuesday Calendar
At Oxford's Jurisprudence Discussion Group, Jorge Menezes Oliveira, presents Harm, Offence, and Mill’s Conception of Liberty. At Oxford's Ockham Society, Valerie Tiberius (University of Minnesota) presents Practical Wisdom and Shifting Perspectives. At Rutgers, Justifications and Excuses: Legal and Philosophical Perpsectives begins today. You can access the papers here. Wu on Copyright's Communications Policy The hot download on SSRN is Tim Wu's Copyright's Communications Policy. Here is the abstract:
Fairman on Rule 9(b) Well, this is a topic that I find fascinating! Christopher M. Fairman (Ohio State University - Michael E. Moritz College of Law) has posted An Invitation to the Rulemakers - Strike Rule 9(b) (UC Davis Law Review, Vol. 38, 2004) on SSRN. Here is the abstract:
Overton on Judicial Review of Campaign Reform Spencer A. Overton (George Washington University - Law School) has posted Restraint and Responsibility: Judicial Review of Campaign Reform (Washington & Lee Law Review, Vol. 61, p. 663, May 2004). Here is the abstract:
Gan, Williams and Wiseman Model Hate Crimes Legislation Li Gan , Roberton C. Williams III, Thomas Wiseman (University of Texas at Austin - Department of Economics , Stanford University - Stanford Institute for Economic Policy Research , University of Texas at Austin - Department of Economics and University of Texas at Austin - Department of Economics) have posted A Simple Model of Optimal Hate Crime Legislation on SSRN. Here is the abstract:
Nzelibe on the Uniqueness of Foreign Affairs Jide Nzelibe (University of Chicago - Law School) has posted The Uniqueness of Foreign Affairs (Iowa Law Review, Vol. 89, No. 942, March 2004) on SSRN. Here is the abstract:
Moreau on the Wrongs on Unequal Treatment Sophia Reibetanz Moreau (University of Toronto - Faculty of Law) has posted The Wrongs of Unequal Treatment (University of Toronto Law Journal, Forthcoming) on SSRN. Here is the abstract:
Hylton on Calabresi and the Intellectual History of Law and Economics Keith N. Hylton (Boston University School of Law) has posted Calabresi and the Intellectual History of Law and Economics on SSRN. Here is the abstract:
Issacharoff on Democracy in Fractured Societies Samuel Issacharoff (Columbia Law School) has posted Constitutionalizing Democracy in Fractured Societies (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
Kang on Deliberative Democracy in the Supreme Court John M. Kang (Western Kentucky University - Department of Political Science) has posted The Irrelevance of Sincerity: Deliberative Democracy in the Supreme Court (Saint Louis University Law Journal, Vol. 48, Issue 2, 2004) on SSRN. Here is the abstract:
Monday, May 24, 2004
Weekend Update On Saturday, the regular features included the SSRN Top Downloads, the Download of the Week (a great new paper by Eugene Volokh), and the Legal Theory Bookworm (recommending Animal Rights: Current Debates and New Directions, edited by Cass Sunstein & Martha Nussbaum). On Sunday, the Legal Theory Calendar previewed the week's talks and conferences and the Legal Theory Lexicon entry was on "Overlapping Consensus and Incompletely Theorized Agreements." Monday Calendar
At Oxford's Moral Philosophy Seminar, Jay Wallace (Berkley) presents Moral Reasons and Moral Motivation. Some Reflections on Rationalism in Ethics. Kysar on Climate Change and Rationality Douglas A. Kysar (Cornell University - School of Law) has posted Climate Change, Cultural Transformation, and Comprehensive Rationality (Boston College Environmental Affairs Law Review, Vol. 31, No. 3, 2004) on SSRN. Here is the abstract:
McGinnis & Movsesian on the WTO John O. McGinnis and Mark L. Movsesian (Northwestern University - School of Law and Hofstra University) have posted Against Global Governance in the WTO (Harvard International Law Journal, Vol. 45) on SSRN. Here is the abstract:
Stavins on Kyoto Robert N. Stavins (Harvard University - John F. Kennedy School of Government) has posted Can an Effective Global Climate Treaty be Based on Sound Science, Rational Economics, and Pragmatic Politics? on SSRN. Here is the abstract:
Sunday, May 23, 2004
Legal Theory Calendar
At Oxford's Moral Philosophy Seminar, Jay Wallace (Berkley) presents Moral Reasons and Moral Motivation. Some Reflections on Rationalism in Ethics.
At University College, London, the Judith Jarvis Thompson (MIT), begins her Shearman Lectures today. The title for the series is Reasons for Acting, Wanting, Admiring, Believing,..... At Oxford's Jurisprudence Discussion Group, Jorge Menezes Oliveira, presents Harm, Offence, and Mill’s Conception of Liberty. At Oxford's Ockham Society, Valerie Tiberius (University of Minnesota) presents Practical Wisdom and Shifting Perspectives.
At University College, London, the Judith Jarvis Thompson (MIT) continues her Shearman Lectures, Reasons for Acting, Wanting, Admiring, Believing,..... At the American Enterprise Institute, Did Workers Pay for the Expansion of Products Liability Law? with Alexander (Sasha) Volokh of the Volokh Conspiracy! Here is the link to download Sasha's paper!
At Florida State, Rob Atkinson, FSU, presents The Ethical Analysis of Law. At University College, London, the Judith Jarvis Thompson (MIT) completes her Shearman Lectures, Reasons for Acting, Wanting, Admiring, Believing,.....
Legal Theory Lexicon: Overlapping Consensus & Incompletely Theorized Agreements
For a short time, the ability to see this pattern may be exhilarating. You begin to see big patterns that transcend courses and doctrines. But after a while, exhilaration may give way to depression. If all the great debates in legal theory boil down to debates about the deepest questions of moral and political philosophy, then the question arises, "Can we make any progress?" Because it sure doesn't look like the debates between deontology and consequentialism or between libertarians and communitarians are going to be decisively resolved any time soon. And that is where today's Legal Theory Lexicon comes into the picture. Even if the deep debates of moral and political philosophy are irresolvable, there may be other ways to make progress in legal theory. In particular, we may be able to use the ideas of "incompletely theorized agreements" (associated with Cass Sunstein) or "overlapping consensus" (associated with John Rawls) to break the impasse on the deep questions. The basic idea is simple. We cannot agree on the deep questions, so go shallow. Find the level at which those who disagree on the deep can nonetheless find common ground. John Rawls calls the idea of common ground by the name "overlapping consensus." Cass Sunstein calls a similar idea, "incompletely theorized agreement." But both Sunstein and Rawls express a similar intuition. When you cannot reach agreement at the deep end of the pool of ideas, head for the shallow end! Deep and Shallow I suspect that you've already gotten it! But just to make sure, let's work through the ideas one by one. The first idea we need is the one that I have expressed by the metaphor of deep and shallow reasons. The metaphor is based on the idea that particular applications (e.g. particular questions of legal doctrine) are at the surface, they are in the shallow end of the pool of ideas. Beneath the surface of particular issues in legal doctrine and legislative policy are deeper disagreements. Disagreements about the a surface level question (e.g. the precise contours of the mailbox rule in contract law) lead to beneath-the-surface issues (e.g. the nature of offer and acceptance) and then to still-deeper issues (e.g. the basis for contractual obligation) and finally to the deepest questions (e.g. the nature of moral obligation). You might picture a chain of reasons, stretching from the surface of legal doctrine down to the depths of political and moral philosophy. Overlapping Consensus John Rawls developed the idea of an "overlapping consensus" as part of the work that led up to his book Political Liberalism. The idea emerged as part of Rawls's work on what he called the problem of stability. In a society governed by Rawls's theory (justice as fairness), the guarantee of basic liberties would mean that individual citizens would be free to adopt their own views about morality and religion. As a result, Rawls argued, it was likely that a variety of comprehensive religious and moral doctrines would emerge. Rawls believed that this fact of pluralism posed a problem for his theory. How could justice as fairness be stable (or reproduce itself) given the plurality of viewpoints that is bound to emerge and persist under conditions of freedom? Rawls's answer to this question was based on the idea that divergent moral and religious conceptions of the good could (despite their diversity) converge on some common ground. That is, citizens who held a plurality of religious and moral beliefs could nonetheless agree on the constitutional essentials--the basic constitutional principles necessary for a society to satisfy the demands of justice as fairness. This meant that different citizens would support justice as fairness for different reasons. Catholics might affirm justice as fairness for reasons found within the Catholic natural law tradition, while secular humanists might affirm the same (or similar) ideas about justice for different reasons. Although a deep consensus might on justice as fairness might be impossible, an "overlapping consensus," Rawls argued, is possible. Incompletely Theorized Agreements Cass Sunstein has a related but different idea. Here is a summary from his article in the Harvard Law Review:
This sort of agreement is incompletely theorized in the sense that it is incompletely specified -- a familiar phenomenon with constitutional provisions and regulatory standards in administrative law. Incompletely specified agreements have distinctive social uses. They may permit acceptance of a general aspiration when people are unclear about what the aspiration means, and in this sense, they can maintain a measure of both stability and flexibility over time. At the same time, they can conceal the fact of large- scale social disagreement about particular cases. There is a second and quite different kind of incompletely theorized agreement. People may agree on a mid-level principle but disagree both about the more general theory that accounts for it and about outcomes in particular cases. They may believe that government cannot discriminate on the basis of race, without settling on a large-scale theory of equality, and without agreeing whether government may enact affirmative action programs or segregate prisons when racial tensions are severe. The connections are left unclear, either in people's minds or in authoritative public documents, between the mid- level principle and general theory; the connection is equally unclear between the mid-level principle and concrete cases. So too, people may think that government may not regulate speech unless it can show a clear and present danger, but fail to settle whether this principle is founded in utilitarian or Kantian considerations, and disagree about whether the principle allows government to regulate a particular speech by members of the Ku Klux Klan. My special interest here is in a third kind of phenomenon -- incompletely theorized agreements on particular outcomes, accompanied by agreements on the low-level principles that account for them. These terms contain some ambiguities. There is no algorithm by which to distinguish between a high-level theory and one that operates at an intermediate or low level. We might consider Kantianism and utilitarianism as conspicuous examples of high-level theories and see legal illustrations in the many (academic) efforts to understand such areas as tort law, contract law, free speech, and the law of equality to be undergirded by highly abstract theories of the right or the good. By contrast, we might think of low-level principles as including most of the ordinary material of legal doctrine -- the general class of principles and justifications that are not said to derive from any particular large theories of the right or the good, that have ambiguous relations to large theories, and that are compatible with more than one such theory. [Cass Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733, 1739-40 (1995)] The alternative is to see whether you can find a different level at which the dispute can be resolved. One possibility is that you can find convergence at the surface level. It seems as if deontologists and utilitarians disagree, but perhaps you can craft consequentialist arguments that converge with the arguments of fairness. Another possibility is that you will be able to find converged on what Sunstein calls "mid-level principles." For example, both consequentialists and deontologists might be able to agree that contract formation (normally) requires that both parties manifest and intention to be bound--although they would have different reasons for affirming this proposition. Conclusion The move to "overlapping consensus" or "incompletely theorized agreements" is one of the niftiest and most useful in contemporary legal theory. Add it your personal legal theory toolbox! Saturday, May 22, 2004
Legal Theory Bookworm Brand new from Oxford is Animal Rights: Current Debates and New Directions, edited by Cass Sunstein & Martha Nussbaum. Here's a description:
Download of the Week This week, the Download of the Week is Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, Situation-Altering Utterances, and the Uncharted Zones by Eugene Volokh. Here is the abstract:
SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:
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