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This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.

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Thursday, September 30, 2004
 
Thursday Calendar
    Florida State University, School of Law: Deborah Schenk, New York University School of Law, Optimal Deterrence and Corporate Tax Shelters.
    Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error.
    Boston University Law Faculty Workshop: David Lyons.


 
Morris on the Civil Criminal Distinction Grant H. Morris (University of San Diego School of Law)has posted Mental Disorder and the Civil/Criminal Distinction (San Diego Law Review, Vol. 41, No. 3, 2004) on SSRN. Here is the abstract:
    This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence - serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process - people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and then broken and forgotten. The essay discusses the shift in Supreme Court jurisprudence from the Warren Court's liberal application of the Constitution to prohibit the special categorization of sentence-expiring prisoners and permanently incompetent criminal defendants for civil commitment, to the Burger and Rehnquist Court's conservative application of the Constitution to permit the special categorization of persons acquitted of crime by reason of insanity and sexually violent predators for civil commitment, and to permit the coerced treatment of competent, though dangerous, criminal defendants.


 
Zacharias on Lawyers as Gatekeepers Fred C. Zacharias (University of San Diego School of Law) has posted Lawyers as Gatekeepers (San Diego Law Review, 2004) on SSRN. Here is the abstract:
    Three recent legislative and regulatory initiatives - the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative - all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers - which some of the opponents deem equivalent to operating like the "secret police in Eastern European countries." This article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been. Whatever one's position on the merits of the specific reforms currently being proposed, it is important to avoid the misconception that lawyers have no role to play in preventing client misconduct. At its root, the gatekeeper rhetoric conflates several separate concepts. At one level, everyone will agree that lawyers are clients' agents and that lawyers' traditional role in the adversary system is to help clients pursue lawful goals through those lawful means that are available. That however, is quite different from saying that lawyers should do whatever clients want, that they should assist clients in achieving illegal pursuits, or that lawyers have no business shaping client ends. This Article canvasses four broad aspects of lawyers' traditional role that necessarily involve lawyers in regulating client conduct: (1) advising clients, (2) screening cases and legal arguments, (3) avoiding personal participation in improper behavior, and (4) disclosing confidences, when permitted by rule, to serve interests that trump the client's.


Wednesday, September 29, 2004
 
Call for Papers: 2005 Joint Session
    CALL FOR PAPERS 2005 JOINT SESSION OF THE MIND ASSOCIATION AND THE ARISTOTELIAN SOCIETY UNIVERSITY OF MANCHESTER, 8-11 JULY OPEN SESSIONS A number of parallel sessions on Saturday and Sunday afternoons will be available for the presentation of papers not previously published. There will be a considerable number of these sessions available, allowing room for many submissions to be included. The intention is to accommodate as many papers as time and space in the programme will allow. Each presentation should last no more than 20 minutes, so that a further 10-15 minutes may be allowed for discussion. Presented papers should aim to introduce material involving recent research. There are no restrictions on the areas of philosophy which papers may address. Philosophers whose papers are included in this part of the programme must be or become subscribing members of one of the organising societies. Those wishing to make a presentation should submit by e-mail attachment a copy of their paper (no more than 2000 words), together with a 250-word abstract, to Dr. Anthony Hatzimoysis (Anthony.Hatzimoysis@man.ac.uk) by 1st March 2005. Decisions on whether papers have been accepted will be made by the end of April 2005. Papers accepted for the Open Sessions will not be published in the Supplementary Volume of the Aristotelian Society (unlike papers invited for the plenary programme of the conference); and expenses will not be paid. Nobody should submit a paper for both the Postgraduate and the Open Sessions. POSTGRADUATE SESSIONS Two parallel sessions on the Saturday afternoon will be devoted to short presentations by graduate students (or those who have recently obtained a postgraduate degree). Each student should speak for 20 minutes, allowing 10 minutes for discussion. Students wishing to participate should send their paper, preferably by attachment in Word 95 or higher, otherwise in two hard copies, by 1st March 2005 to: Mr. A. W. Price, Department of Philosophy, Birkbeck College, Malet Street, London, WC1E 7HX. Email: a.price@bbk.ac.uk The paper should be about 2000 words but no more than 2500 words, including notes and bibliography, and should begin with a brief abstract. It should be typewritten in 12-point text, single-spaced throughout (i.e. including references and quotations), on one side of white A4 paper. All pages should be numbered and have margins of 1 inch or more. Papers containing symbols liable to distortion in transmission should be submitted as hard copies; otherwise soft copy is welcome. Please ensure that there are no self-identifying references in the text. Submissions should be accompanied by a separate page containing the title of the paper, the name of the author, institution and status, and email and postal addresses. Authors are advised to consult supervisors about what may be suitable for presentation to a largely professional audience. Given the tight word-limit, they are advised to give as much space as they can to the statement of their own ideas. The papers will be sent to referees, and a maximum of eight will be selected by the Joint Committee for presentation at the Joint Session. The programme will be settled in May 2005. The selected authors will have their conference fee and accommodation expenses (but not their travel costs) paid by the Mind Association and the Aristotelian Society. Some papers may subsequently be considered for publication in the Proceedings of the Aristotelian Society. INVITED SPEAKERS Inaugural Address - Simon Blackburn Symposia: Alan Richardson and Thomas Uebel Derek Matravers and Jerrold Levinson Samuel Scheffler and Véronique Munoz-Dardé Stewart Shapiro and Patrick Greenough Jennifer Hornsby and Jason Stanley Marilyn Adams and Richard Cross Georgia Testa Executive Secretary The Aristotelian Society Room 260 Senate House Malet Street London WC1E 7HU Tel and fax: + 44 (0) 20 7255 1724 Email: mail@aristoteliansociety.org.uk http://www.aristoteliansociety.org.uk


 
Wednesday Calendar
    New York University Legal History Colloquium: William Novak, Visiting Professor, NYU School of Law.


Tuesday, September 28, 2004
 
Goodman on Media Policy Ellen P. Goodman (Rutgers University - Law School) has posted Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets on SSRN. Here is the abstract:
    Abstract: Media policy debates are today marred by outdated and ultimately unworkable justifications for government intervention in media markets. Both proponents and opponents of such intervention have obscured the appropriate goals of media policy. Moreover, they have paid insufficient attention to the impact of digital media on the marketplace of ideas. This article proposes a new account of media policy goals and offers the first detailed analysis of how new media market dynamics should affect future media policies. Policies that promote greater diversity in video products, whether through regulations or subsidies, serve both reactive and proactive purposes. In its reactive posture, media policy aims to correct what I call narrow market failures. These are failures of media markets to deliver content that small audience segments desire. But media policy must also pursue a proactive agenda by supplementing even well-functioning markets. This proactive thrust responds to broad failures of the market to deliver media content that audiences might not currently desire, but promotes democratic discourse and social solidarity. This article shows how digital networks substantially affect both reactive and proactive media policy objectives. Existing media policies are premised on the mid-twentieth century reality of scarce content and abundant audience attention. But in the digital era, it is attention that is scarce and content that is abundant. Drawing on empirical evidence and theory from several disciplines, I show how this shift changes the narrow market failures to which media policy must respond and undermines past responses to broad market failures. I conclude by applying these theories to media subsidies, arguing that subsidies for a robust public service media are the proper channel for media policy in the digital era from both a First Amendment and practical perspective.


 
Conference Announcement: Consequentialism at Edingurgh
    Conference on Consequentialism 24 October 2004 Timetable Session 1: 10.30am-11.30am Speaker: Julia Driver (Dartmouth College) ‘The actual in actualism’ Session Chair: Tim Chappell (Dundee University) Lunch: 11.30am-1pm Session 2: 1pm-2pm Speaker: Elinor Mason (Edinburgh University) ‘The High Price of Pluralism’ Chair: Session 3: 2pm-3pm Speaker: Brad Hooker (Reading University) ‘Reply to Arneson and McIntyre’ Chair: Tea: 3pm-3.30pm Session 4: 3.30pm-4.30pm Speaker: Elizabeth Ashford (St Andrews University) TBA Chair: Session 5: 4.30pm-5.30pm Speaker: David McCarthy (Edinburgh University) “Utilitarianism and Prioritarianism’ Chair:


Monday, September 27, 2004
 
Mondayh Calendar


Sunday, September 26, 2004
 
Legal Theory Calendar
    Monday, September 27 Wednesday, September 29
      New York University Legal History Colloquium: William Novak, Visiting Professor, NYU School of Law.
    Thursday, September 30
      Florida State University, School of Law: Deborah Schenk, New York University School of Law, Optimal Deterrence and Corporate Tax Shelters.
      Stanford Law & Economics: Chris William Sanchirico (University of Pennsylvania Law School), Evidence, Procedure, and the Upside of Cognitive Error.
      Boston University Law Faculty Workshop: David Lyons.
    Friday, October 1
      University of San Diego's Institute for Law and Philosophy: Roundtable on Law and Morality.
      Georgetown Law and Economics: Kevin Davis, New York University School of Law, The Demand for Immutable Contracts: Another Look at the Law and Economics of Contract Modifications.


 
Legal Theory Lexicon: The Reasonable Person
    Who is the reasonable person and why hasn't she been attending class?
    Introduction Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational.
    The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.
    A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law.
    The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.
    When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end.
    When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent.
    So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due.
    Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones.
    Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.
    Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
      [T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
    United States v. Carroll Towing Co., 159 F.2d 169, 173, reh'g denied, 160 F.2d 482 (2d Cir.1947); see also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.).
    The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)
    Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis.
    Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons.
    Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.
    And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?
    Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.
    Bibliography
    • Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law, 74 Chi.-Kent L. Rev. 1431 (2000).
    • Stephen Gilles, On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury, 54 Vand. L. Rev. 813 (2001).
    • Kyron Huigens, Virtue and Criminal Negligence, 1 Buff. Crim. L. Rev. 431, 447-58 (1998).
    • Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996).
    • Gregory C. Keating, Pressing Precaution Beyond the Point of Cost-Justification, 56 Vand. L. Rev. 653 (2003).
    • Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996).
    • Stephen Perry, Cost Benefit Analysis and the Negligence Standard, 54 Vanderbilt L. Rev. 893 (2001).
    • Richard Posner, Economic Analysis of Law (6th ed. 2002).
    • John Rawls, Political Liberalism (Paperback ed. 1995).
    • Steven Shavell, Economic Analysis of Accident Law, (December 2002). Harvard Law and Economics Discussion Paper No. 396. http://ssrn.com/abstract=367800.
    • W.M. Sibley, The Rational and the Reasonable, 62 Phil. Rev. 554 (1953).
    • Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inquiries in Law 283 (2002).
    • Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values, 54 Vanderbilt L. Rev. 901 (2001).
    • Kenneth W. Simons, Negligence, 16 Social Philosophy and Policy 52 (1999).
    • Kenneth W. Simons, Deontology, Negligence, Tort, and Crime, 76 Boston U. L. Rev. 273 (1996).
    • Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law 249 (David G. Owen ed., 1995).
    I owe thanks to Ken Simons, who provided considerable assistance with this post.


Saturday, September 25, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Difficulty of Tolerance : Essays in Political Philosophy by T. M. Scanlon. Scanlon is without doubt one of the fienst moral philosophers of his generation. I sometimes find his prose frustrating--he often uses baroquely complex paragraph constructons--but, for me, the effort has always been worthwhile. Here is a blurb:
    These essays in political philosophy by T. M. Scanlon, written between 1969 and 1999, examine the standards by which social and political institutions should be justified and appraised. Scanlon explains how the powers of just institutions are limited by rights such as freedom of expression, and considers why these limits should be respected even when it seems that better results could be achieved by violating them. Other topics which are explored include voluntariness and consent, freedom of expression, tolerance, punishment, and human rights. The collection includes the classic essays 'Preference and Urgency', 'A Theory of Freedom of Expression', and 'Contractualism and Utilitarianism', as well as a number of other essays that have hitherto not been easily accessible. It will be essential reading for all those studying hese topics from the perspective of political philosophy, politics, and law.
And the synopisis is exactly right about A Theory of Freedom of Expression and Contractualism and Utilitarianism--these are both essential reading.


 
Download of the Week The Download of the Week is Judges as Rulemakers by Larry Alexander and Emily L. Sherwin. Here is the abstract:
    This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or from principles immanent in the body of precedent. The principal drawback of a rule-based model of precedent is its seeming resistance to change. After defending the rule model against its competitors, we discuss a variety of refinements that clarify the model and make it more amenable to legal reform. Topics covered include identification of precedent rules, preconditions for authority, decision-making in the absence of a precedent rule, and overruling.
Download it while its hot!


Friday, September 24, 2004
 
Yu on P2P Peter K. Yu (Michigan State University College of Law) has posted P2P and the Future of Private Copying (University of Colorado Law Review, Vol. 76, 2005) on SSRN. Here is the abstract:
    Since the beginning of the P2P file sharing controversy, commentators have discussed extensively the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have examined in detail the many aspects of the P2P file sharing controversy, none of them focuses on the big picture and explains how these issues fit within the larger P2P file sharing debate. Using a holistic approach, this Article takes on the ambitious task of bringing together existing scholarship while offering some thoughts on the future of private copying. This Article does not seek to offer any new theory or model, which could become obsolete quickly, or even immediately, as digital and P2P technologies advance. Rather, the Article provides guidelines as to how policymakers can craft the "ultimate solution" to the unauthorized copying problem. This Article begins by examining the RIAA's enforcement tactics, developments in copyright law in 2003, and possible challenges the entertainment industry will face in ensuing years. The Article then evaluates critically proposals commentators have put forward to solve the unauthorized copying problem: (1) mass licensing, (2) compulsory licensing, (3) voluntary collective licensing, (4) voluntary contribution, (5) technological protection, (6) copyright law revision, (7) dispute resolution proceeding, and (8) alternative compensation. Acknowledging the short-term and interim nature of many of these proposals, this Article contends that policymakers need to adopt a range of solutions that meet consumer needs while taking into account the Internet's structural resistance and networked feature and the changing social norms in the digital copyright world. This Article concludes by challenging policymakers and commentators to step outside their mental boundaries to rethink the P2P file sharing debate. In the fashion of thought experiments, this Article compares the digital copyright wars to (1) a self-preservation battle between humans and machines, (2) an imaginary World War III, and (3) the conquest of Generation Y. By using these comparisons, this Article demonstrates that policymakers should not focus on legal solutions alone. Instead, they should pay more attention to the market, architecture, and social norms, which play equally important roles in crafting the "ultimate solution" to the unauthorized copying problem.


 
Morgan & Zietlow on the New Parity Debate Denise C. Morgan and Rebecca E. Zietlow (New York Law School - General and University of Toledo - College of Law) have posted The New Parity Debate: Congress and Rights of Belonging on SSRN. Here is the abstract:
    In recent years a debate has emerged over whether parity exists between Congress and state legislatures that has yet to be the focus of significant scholarly attention. In contrast to the older dispute over the comparative strengths of federal and state courts made famous in Professor Burt Neuborne's 1977 Harvard Law Review article, The Myth of Parity, this new debate questions the competence of Congress compared to that of state and local legislatures to define and make enforceable individual rights. Whether parity exists between state and federal legislatures is especially salient in light of the Supreme Court's ongoing "Federalism Revolution" which has reduced Congress's legislative powers and created a vacuum in the protection of individual rights - presumably to be filled by the states. The most important question in the wake of those lines of cases is whether individual rights can still be effectively protected in the absence of a strong national legislature? Or has something significant been lost? Our article, The New Parity Debate: Congress and Rights of Belonging, argues that Congress plays an irreplaceable role in the protection of individual rights, such that the inevitable result of a reduction in that institution's power will be a rollback in those rights. We are particularly concerned about federal legislation that promotes a more inclusive vision of who belongs to the national community of the United States and that facilitates equal membership in that community. We refer to those rights as "rights of belonging." State legislation is simply not an adequate substitute for federal legislation because it must necessarily be piecemeal and varied. In contrast, Congress has greater institutional competence to determine when there is a need for rights of belonging than individual state legislatures have, only Congress can create a nationally uniform baseline of rights, and a shared understanding of rights of belonging reinforces those rights and strengthens our political community. We conclude that the Supreme Court should not attempt to delegate Congress's role in protecting rights of belonging to state governments based on the assumption that there is parity between the institutions.


 
Shavell on the Appeals Process Steven Shavell (Harvard Law School) has posted The Appeals Process and Adjudicator Incentives. Here is the abstract:
    The appeals process - whereby litigants can have decisions of adjudicators reviewed by a higher authority - is a general feature of formal legal systems (and of many private decisionmaking procedures). It leads to the making of better decisions, because it constitutes a threat to adjudicators whose decisions would deviate too much from socially desirable ones. Further, it yields this benefit without absorbing resources to the extent that adjudicators can anticipate when appeals would occur and would thus make decisions to forestall the actual occurrence of appeals.


 
Conference Announcement: Society for Applied Philosophy
    Society for Applied Philosophy INTERNATIONAL CONGRESS 2005 ST ANNE'S COLLEGE OXFORD 1-3 JULY Plenary speakers include: Allen Buchanan (Duke) Hubert L. Dreyfus (Berkeley) Frances Myrna Kamm (Harvard) Jeff McMahan (Rutgers) Onora O'Neill (Cambridge) CALL FOR PAPERS APPLIED PHILOSOPHY 25 YEARS ON: Problems and Prospects -------------------------------------------------------------------------------- The British Society for Applied Philosophy was established in 1980 and held its first one-day conference in 1981. To mark its 25th anniversary the Society is holding an international conference in the summer of 2005. The origins of applied philosophy can be traced back as far as Plato and Aristotle. The express identification of 'applied philosophy' was intended to promote the distinctive role of philosophical thinking in the examination and discussion of matters of practical consequence and public policy. The British Society for Applied Philosophy has played a key part in its subsequent advancement, through workshops and conferences, and especially the Journal of Applied Philosophy, now an established and acknowledged source of high quality work in the area. The SAP has decided to devote its annual conference for 2005 to an international retrospective on applied philosophy. The aim is to address the problems facing the subject as these have emerged over the last three decades, and to identify its most promising prospects for the next three. Four keynote lectures from leading figures will address this general theme. In addition, there will be a "Graduate Keynote" in which a postgraduate student will deliver the paper that has won the Applied Philosophy Postgraduate Prize Competition 2005 . As well as the keynotes, there will be concurrent sub-sessions organized around eight panels, covering all the major topics in applied philosophy. Paper proposals are now invited for these concurrent sub-sessions. The panels are as follows: Applied Philosophy in the History of Philosophy Applied Ethics Applied Aesthetics Environmental Philosophy Legal and Social Philosophy Philosophy of Economics Philosophy of Education Philosophy of Technology One page (250 words max.) abstracts should be submitted by 1st December 2004. Notification of acceptance by January 31st 2005. All abstracts will be peer refereed and accepted papers will be assigned a commentator. Offers are also welcome from those who would like to serve only as a commentator. ABSTRACTS should be submitted as an attachment for blind referee with author's full contact details in the message text of the email. Send to: admin@appliedphil.org (electronic format preferred) Or by post to: Jon Cameron SAP International Symposium Department of Philosophy University of Aberdeen AB24 3UB SCOTLAND


 
Friday Calendar


Thursday, September 23, 2004
 
Mercurio on Internet Voting as the Salvation of Democracy Bryan Christopher Mercurio (University of New South Wales - Faculty of Law) has posted Democracy in Decline: Can Internet Voting Save the Electoral Process? (John Marshall Journal of Computer & Information Law, 2004) on SSRN. Here is the abstract:
    This article evaluates the ability of Internet voting to improve the electoral process by comparing it against traditional methods of voting currently used. In order to clearly understand electoral issues, the article briefly describes the criteria needed in order to conduct a successful election. It then introduces and defines the different forms of Internet voting used in the context of this article before introducing and analyzing some major faults with the election system, including its discriminatory effect on minority and disabled voters. The article then evaluates the promise of Internet voting as a solution to these faults while also reviewing and substantially discrediting the perceived problems with implementing Internet voting. The article concludes by putting forward several proposals leading to the gradual introduction of Internet voting into the electoral landscape.


 
Alexander & Sherwin on Precedent Larry Alexander and Emily L. Sherwin (University of San Diego School of Law and Cornell University - School of Law) have posted Judges as Rulemakers (COMMON LAW THEORY, Douglas Edlin, ed., Cambridge University Press) on SSRN. Here is the abstract:
    This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or from principles immanent in the body of precedent. The principal drawback of a rule-based model of precedent is its seeming resistance to change. After defending the rule model against its competitors, we discuss a variety of refinements that clarify the model and make it more amenable to legal reform. Topics covered include identification of precedent rules, preconditions for authority, decision-making in the absence of a precedent rule, and overruling.
Highly recommended!


 
Zacharias on Recent Trends in Federal Regulation of Lawyers Fred C. Zacharias (University of San Diego School of Law) has posted Understanding Recent Trends in Federal Regulation of Lawyers (Professional Lawyer, Symposium Issue, 2003) on SSRN. Here is the abstract:
    Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation - themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place their criticisms in context. Only by placing the federal reforms in the context of the broader analytic themes can we begin to evaluate their actual and potential significance. The article concludes that no single explanation for the reforms is possible. They do not neatly fit a uniform pattern that reflects an overarching change in regulatory approaches or in society's attitudes towards the relative merits of state and federal regulation. They do, however, suggest a series of questions about traditional regulation that the federal actors have opened for discussion. The best view of recent events is that they have begun a process of negotiation with respect to particular substantive issues, potential new approaches, and the relative competence of different institutions to regulate different aspects of legal practice.


 
Prüfer on the Economics of Open Source Jens Prüfer (University of Frankfurt) has posted Why Do Developers and Firms Contribute to the Production of Open Source Software? on SSRN. Here is the abstract:
    This article explains why both software developers and firms contribute to the production of Open Source Software (OSS). Existing economic theories either focus on the supply side (developers) or the demand side (firms) of OSS development. This paper is the first to explain both sides in one integrated model by understanding the OSS production process as an application contest to the network of prominent developers. Programmers contribute because they aim for reputation and high salaries. Firms finance the process, since they receive inside information on highly talented developers not yet known on the regular job market.


 
Thursday Calendar


Wednesday, September 22, 2004
 
An Intriguing Proposal Karen Selick has an intriguing idea for the reform of Canada's highest court:
    With the recent appointment of two new judges to the Supreme Court of Canada, the controversy over how we select our top judges has been re-ignited. The court has been increasingly drawn into political issues of late. Consequently, groups from all across the political spectrum want these positions filled by judges who share their own ideology. That's why they want a role in questioning and vetoing candidates. I think I've got a better idea. It's radical, but in the long run it would diminish rather than increase the politicization of the court, and that's a good thing. There's no God-given rule that says there has to be a standing body called the Supreme Court of Canada. I think the nine permanent positions on the court should be abolished, and a system of case-by-case appointments should be adopted. There would be a pre-approved pool of qualified judges. It might include every judge currently on the provincial and territorial courts of appeal, plus perhaps some top professors from our law schools, and maybe even some renowned lawyers. Whenever a case arose that required an appeal to a final level in the judicial system, the litigants and their lawyers - in other words, the people most intimately involved in the case - would select the nine members of the panel who would serve. Each side would prepare a short list of its preferred nine judges. If a judge's name appeared on both short lists, he or she would automatically be in. The remaining vacant positions would be allocated equally to the two sides, to be filled with their top choices. If there were an odd number, the judges already selected would choose someone to fill the final slot. We would also allow each side to veto one or two of the judges shortlisted by the other side. This would ensure that the ideologues most objectionable to each side would not get a chance to sit in judgment over them.
Courtesy of reader Carson Cheng.


 
Program Annoucement: The Past Present and Future in Antitrust Enforcement at the FTC
    10th Anniversary Speaker Series Monday, September 27, 2004 The Past Present and Future in Antitrust Enforcement at the FTC A Lunch Address by Robert Pitofsky Former Chair, Federal Trade Commission Cosponsored by the Illinois State Bar Association Antitrust and Unfair Competition Law Section 12 Noon Kasbeer Hall 25 E. Pearson 15th Floor Loyola University Chicago Chicago, IL 60611 Lunch and Lecture are free to members of the Loyola Community and ISBA Antitrust Section. A $25 donation is requested of all other guests. RSVP to/ Make Check payable to: Institute for Consumer Antitrust Studies Loyola University Chicago School of Law 1 E. Pearson Street Chicago, IL 60611 312-915-8598 Email: antitrust@luc.edu Website: www.luc.edu/antitrust


 
Can a Moral Subjectivist Change Her Mind? Take a look at Intra-Personal Moral Disagreement by Uriah Kriegel on Desert Landscapes. Here is a taste:
    Some subjectivist and/or anti-realist positions are sometimes accused of not making room for genuine moral disagreement. Take straightforward expressivism. According to it, when two people say one that abortion is wrong and one that abortion is right, the first is merely saying “boo to abortion” and the other “hurrah to abortion.” No conflict between two claims that could not both be true. It occurs to me that this may lead to an even greater embarrassment. If a theory entails the impossibility of inter-personal disagreement, it probably also entails the impossibility of intra-personal disagreement, that is, change of view. Suppose Person holds in 2003 that abortion is wrong and in 2004 that it’s right. We would like to say that Person changed her mind on the topic of abortion. But according to expressivism, she merely felt “boo to abortion” in 2003 and “hurrah to abortion” in 2004. No conflict.


 
Program Announcement: Knowledge Anywhere, Anytime at Stanford
    US-ASIA TECHNOLOGY MANAGEMENT CENTER (US-ATMC) and Alliance Forum present Knowledge Anywhere, Anytime: the World at your Fingertips a half-day program featuring
      Dr. Keiji Tachikawa, Former President & CEO, NTT DoCoMo, Inc Mr. Seiichi Shimada, President & CEO, Nihon Unisys Ltd Mr. George Hara, Managing Partner, Defta Partners Dr. Gerry Purdy, Principal Analyst, Mobile Trax LLC Dr, Minoru Etoh, President & CEO, DoCoMo Labs, USA
    Friday, September 24, 2:00 p.m. -5:30 p.m. Mudd Chemistry Building (Braun Auditorium), Stanford University Free Admission * Public Welcome R.S.V.P Required by e-mail to viji@stanford.edu More details at http://asia.stanford.edu/events/Alliance04/sept24.html Directions & Parking at http://asia.stanford.edu/events/MuddChemistry.html


 
Wednesday Calendar
    Georgetown Law & Economics Workshop: Richard Posner, United States Court of Appeals for the Seventh Circuit & University of Chicago Law School, The Law and Economics of Contract Interpretation. (Anyone have a link to (or copy of) this paper?)
    Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst.
    Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004.


Tuesday, September 21, 2004
 
Lecture Announcement: Perry at Notre Dame
    At Notre Dame, the first Natural Law Institute lecture of the academic year is scheduled for Tuesday, September 28 at 4:00 p.m. Stephen Perry, the Fiorello LaGuardia Professor of Law and Professor of Philosophy at NYU Law School, is the speaker. His lecture is titled "Law and Obligation".


 
Conference Announcement: Bellhead/Nethead: The FCC Takes On The Internet
    On Tuesday, September 28, 2004, the Floersheimer Center for Constitutional Democracy, at the Benjamin N. Cardozo School of Law, in conjunction with the Yale Information Society Project, will sponsor Bellhead/Nethead: The FCC Takes On The Internet. This one-day conference will take place at the Benjamin N. Cardozo School of Law in New York City. The conference will bring together representatives from the FCC, the telecommunications and internet industries, a diverse array of public policy organizations, and the legal academic community, to discuss the regulation of IP-enabled services. We hope you will join us. Please register here so that we can send you updates about the conference. The conference will explore four major threads under the umbrella of regulation of IP-enabled services. This web site will be a central resource for the various viewpoints represented in these discussions. You will find information about the conference as well as materials relevant to the various panel discussions. Check back frequently as the links here will be updated to track ongoing developments. Visit a specific Panel page through the links on the left. Session Topics Panel 1: Justifications for Regulation What is/are the justification(s) for FCC regulation of IP-enabled services, as those services are defined in n.1 of the NPRM? How persuasive are these justifications? Do different justifications underlie different aspects of the proposed rulemaking? What are possible responses to these proposed justifications? Are justifications for traditional FCC regulation of traditional services transferable to this setting? Panel 2: Ancillary Jurisdiction What are the arguments for and against FCC's exercise of "ancillary jurisdiction" over IP-enabled services, as such services are defined in n.1 of the NPRM? Are there new ways of thinking about the FCC's role and/or the jurisdictional approach suggested by the NPRM (e.g., a "layers" approach) that might be useful? Can the FCC preempt state actions without itself acting? Panel 3: Universal Service Should universal service contributions be required of all IP-enabled services? Or only those that use telephone numbers or connect to the telephone system? Or none? Panel 4: CALEA What is the proper scope of CALEA's coverage? As a matter of policy? Of law? What is likely to happen next in this debate?


 
Tuesday Calendar
    Harvard Law and Economics Seminar: George Triantis (University of Virginia School of Law) and Robert Scott (University of Virginia School of Law), Embedded Options and the Case Against Compensation in Contract Law.


Monday, September 20, 2004
 
Monday Calendar
    Loyola Marymount University, Loyola Law School, Faculty Workshop: Troy Paredes, Associate Professor of Law, Washington University - St. Louis, School of Law, Too Much Pay, Too Much Deference: Is CEO Overconfidence the Product of Corporate Governance?.
    Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax.
    New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced.


 
Weekend Update On Saturday, the Download of the Week was Constitutional Amendments and the Constitutional Common Law by Adrian Vermeule and the Legal Theory Bookworm recommended Promises to Keep by William Fisher. On Sunday, the Legal Theory Lexicon topic was "Hypotheticals" and the Legal Theory Calendar is back in full swing.


 
Rasmusen on Lemley and the Consumer Surplus Argument for IP Check out The Consumer Surplus Argument for Patent Monopolies on Rasmusen's Not Politics Weblog.


 
Metaethics in Legal Reasoning Download Meta Ethics in Legal Reasoning by Hanno Kaiser of Law & Society Weblog.


 
McCaffery & Siemrod on Behavioral Public Finance Edward J. McCaffery and Joel B. Slemrod (University of Southern California - Law School and University of Michigan Business School) have psoted Toward an Agenda for Behavioral Public Finance on SSRN. Here is the abstract:
    Public finance is one of the oldest sub-fields in economics and social science, behavioral economics among the youngest. While the field of behavioral finance has received much attention, behavioral public finance has received far less. Yet the absence of any simple arbitrage mechanism in the public sphere, such as markets and competition in private domains, suggests that the effects of deviations from rationality may pervade public finance. This article surveys the potential new field of behavioral public finance and notes three broad areas for further inquiry and development: (1) the role of form and framing in the design of public finance mechanisms, (2) the significance of time inconsistency and problems of self-control in employing welfarist models of public policy and (3) alternative models of taxpayer compliance. The three areas illustrate, however tentatively, the need for researchers and policy-makers to use realistic assumptions of human judgment and decisionmaking in considering important questions in public finance.


 
Burke on Lee Alafair S. Burke (Hofstra University - School of Law) has posted BOOK REVIEW: Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom. By Cynthia Lee. (Michigan Law Review, 2005) on SSRN. Here is the abstract:
    In her recently published book, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, Cynthia Lee weaves together an array of case narratives to argue that the concept of reasonableness in self-defense and provocation cases allows majority culture defendants to benefit from jurors' deeply ingrained biases. She makes her case by drawing from three categories of cases: men who claim they were provoked to kill by female infidelity; "gay panic" cases, in which heterosexual defendants claim self-defense or provocation from unwanted homosexual advances; and "racialized fear" cases, in which white defendants claim self-defense to justify the killing of victims of color. Lee argues that the role of reasonableness in the law of criminal defenses permits the majority culture defendants in these cases to benefit from unspoken juror biases that render male jealousy, heterosexual protectiveness, and white fears of people of color understandable. Lee's reassessment of the reasonableness requirement launches primarily from her concern about this inequity. Having identified her primary concern, Lee devotes the bulk of her book to the development of three reforms. First, she argues that jurors should be required to apply a normative concept of reasonableness in addition to an empirical one, focusing not only on what most individuals might have believed or done in the defendant's situation, but also on what an individual ought to have believed or done. Second, she maintains that jurors should evaluate the reasonableness of not only the defendant's beliefs, but also his actions. Finally, and most interestingly, Lee encourages a trial practice of "switching," in which jurors would be asked to switch the races, genders, and sexual orientations of the parties involved in the case in order to expose any hidden biases. In this review, I attempt to situate Lee's recommendations within the broader debates in current criminal law scholarship between rule-based and standard-based defenses and between "objective" and "subjective" standards for judging claims of reasonableness. Situating her analysis within the broader literature on criminal defenses, I recharacterize her recommendation that jurors evaluate the reasonableness of both the defendant's beliefs and his conduct as a call for criminal defenses defined by flexible standards, rather than by imperfect rules intended to reflect those standards. Only when defenses have resorted to imperfect rules has it created the potential for defendants who believed reasonably, but behaved unreasonably, to avoid criminal liability. I then turn to Lee's suggestion of using "switching" and attempt to discern its implications for the broader dichotomy between subjective and objective standards of reasonableness. The standard story here juxtaposes an objective standard of reasonableness with a so-called subjective one in which jurors evaluate the defendant's reasonableness by comparing him to a hypothetical reasonable person sharing all of the individual defendant's relevant character traits. Although the battered woman has been depicted as the "poster child" of subjectivity, Lee adds a new dimension to this traditional dichotomy by suggesting that it is not battered women but, rather, white, heterosexual men who are most able to manipulate the concept of reasonableness by invoking dominant cultural norms. Although Lee sees switching as a way to neutralize stereotypes in the cases that concern her, I see it more broadly as a method of implementing an objective, contextualized standard of reasonableness in which jurors would compare the defendant to a hypothetical neutral reasonable person - without gender, race, or sexual orientation - in the defendant’s situation. By tackling their intuitive responses to switching exercises, jurors conjuring a neutral reasonable person in the defendant's shoes might best be able to isolate the relevant, objective circumstances that should properly contextualize the defendant's situation, a task that has troubled courts and scholars since the emergence of the battered woman self-defense cases.


 
Berg on Owning Persons Jessica Wilen Berg (Case Western Reserve University - School of Law) has posted Owning Persons: The Application of Property Theory to Embryos and Fetuses on SSRN. Here is the abstract:
    Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking. This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories. The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses.


 
Sunder on Property in Personhood Madhavi Sunder (University of California, Davis - School of Law) has posted Property in Personhood (RETHINKING COMMODIFICATION: CASES AND READINGS IN LAW & CULTURE, Martha M. Ertman and Joan C. Williams, eds., 2005) on SSRN. Here is the abstract:
    Traditional communities oppose multinational corporations' efforts to patent traditional remedies. Native Americans contest the Washington Redskins trademark as disparaging. A small New Mexican Indian tribe sues the state government for using a spiritual symbol on the state flag. Australian aboriginal communities seek collective copyrights in their artwork. Indigenous peoples in Canada want copyrights in traditional stories. More and more, historically subordinated groups are turning to concepts of intellectual property - albeit grounded in identity and culture, not economic incentives - as a means to protect against cultural imperialism, cultural appropriation, and digital appropriation. Current trends in academic thinking do not bode well for these new claims for property in personhood: commodification scholars warn that commodification will lead to the alienation, rather than the preservation, of indigenous culture. Anthropologists argue that property rights essentialize and freeze traveling cultures. Others view these claims as the first step on a slippery slope toward slavery. Finally, there are the critiques from intellectual property, where increasingly scholars bemoan what is called "the new enclosure movement" in ideas. But the new claims for intellectual property rights as social relations cannot be dismissed easily. Assertions of power over one's own identity necessarily lead to assertions of property ownership. As Radin has taught us, property is an essential part of what it means to be fully human. Property enables us to have control over our external surroundings. Seen in this light, it is not enough to see all claims for more property simply as intrusions into the public domain - that is, "bad intellectual property" - or as cultural essentialism, that is, "bad identity politics." Instead, we may begin to see them as assertions of personhood. Just as contemporary property law recognizes property as social relations, we must begin to view intellectual property in a similar way. Indeed, to the extent that contemporary property law offers a balanced, complex, and dialogical view of social relations, the possibilities for property rights in identity are not entirely bleak. Indeed, where scholars increasingly criticize identity politics for relying on a monologic understanding of identity, property could be just what identity politics needs. In other words, while current claims for property in personhood tend toward essentialized views of both property and culture, they need not do so. Far more sophisticated understandings of both property and culture exist. We should not categorically fear the rise of new property rights. Rather, there is much to be gained from articulating competing descriptive and normative visions of intellectual property, particularly those that challenge the historically dominant paradigms.


Sunday, September 19, 2004
 
Legal Theory Calendar
    Monday, September 20
      Loyola Marymount University, Loyola Law School, Faculty Workshop: Troy Paredes, Associate Professor of Law, Washington University - St. Louis, School of Law, Too Much Pay, Too Much Deference: Is CEO Overconfidence the Product of Corporate Governance?.
      Sarah Waldeck, Seton Hall Law School, An Appeal to Charity: Using Philanthropy to Reinvigorate the Estate Tax.
      New York University School of Law: Stephen Choi (Berkeley, visiting NYU), Topic not announced.
    Tuesday, September 20
      Harvard Law and Economics Seminar: George Triantis (University of Virginia School of Law) and Robert Scott (University of Virginia School of Law), Embedded Options and the Case Against Compensation in Contract Law.
    Wednesday, September 22
      Georgetown Law & Economics Workshop: Richard Posner, United States Court of Appeals for the Seventh Circuit & University of Chicago Law School, The Law and Economics of Contract Interpretation.
      Northwestern University Law & Economics Colloquium: David Haddock, Northwestern University, Irrelevant Externality Angst.
      Australian National University: Conference, Australian Lawyers and Social Change, Canberra, 22 - 24 September 2004.
    Thursday, September 23 Friday, September 24


 
Legal Theory Lexicon: Hypotheticals
    Introduction The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are." The purpose of this post is to reflect on the "hypothetical," with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorous and analytically about hypotheticals, what they are, what they can and can't accomplish, how to construct them, and how to maneuver around them.
    What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."
    In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.
    Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:
    • What if the agreement had been oral instead of in writing?
    • What if the contract price had been $300?
    • What if Alice had been a minor?
    • What if the contract had not specified a price?
    • What if Alice did the job, but the roof still leaked?
    And so on.
    The Purposes of Hypotheticals Why do law professors use hypotheticals?
    • As a tool for the explication of legal doctrine.
    • As a tool for exploring the moral underpinnings of legal rules.
    • As a tool for exploring the consequences of legal rules.
    Law students quickly become familiar with the first of the three kinds of hypotheticals. They read a case and learn a rule. The professor then poses hypothetical variations on the case to test the student's knowledge of the rule. Typically, the hypo is followed with a question like, "What result?" But legal education is also about the normative analysis of legal doctrine, and hypotheticals can also be used to explore our intuitions about the morality of the law. Such hypos are frequently end with, "What should the result be?" And the follow-up question, "That's the rule, but do you think that is the right result?" Finally, contemporary legal education incorporates a healthy dose of economic analysis. So, we can add information about prices to hypos and then ask what consequences a rule will produce if the various actors are "rational" in the economic sense.
    "Beware the hypothetical, my son. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.
    Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.
    Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.
    Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."
    Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
      Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.
      Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
        (1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).
        (2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
        (3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
      Hard cases are the meat and potatoes of law school.
      Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fair to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the dessert of law school.
    There is a lot more to learn about hypotheticals (perhaps in a second installment in the Legal Theory Lexicon, but these four lessons should get you started. Take your vorpal sword in hand!


Saturday, September 18, 2004
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Promises to Keep by William W. Fisher III. Here is a blurb:
    During the past fifteen years, changes in the technologies used to make and store audio and video recordings, combined with the communication revolution associated with the Internet, have generated an extraordinary array of new ways in which music and movies can be produced and distributed. Both the creators and the consumers of entertainment products stand to benefit enormously from the new systems. Sadly, we have failed thus far to avail ourselves of these opportunities. Instead, much energy has been devoted to interpreting or changing legal rules in hopes of defending older business models against the threats posed by the new technologies. These efforts to plug the multiplying holes in the legal dikes are failing and the entertainment industry has fallen into crisis. This provocative book chronicles how we got into this mess and presents three alternative proposals—each involving a combination of legal reforms and new business models—for how we could get out of it.
I'm only about 1/2 into Fisher's book--which certainly deals with the hottest issues in copyright law in an intelligent and nuanced way.


 
Download of the Week This Download of the Week is Constitutional Amendments and the Constitutional Common Law by Adrian Vermeule. Here is the absract:
    Constitutions obsolesce rapidly, and must be updated over time to reflect changes in the polity's circumstances and citizens' values. What institution or process should be entrusted with the authority to do the updating? If periodic wholesale replacement of the constitution is infeasible, the plausible choices are the constitutional amendment process set out in Article V, flexible interpretation by judges under the banner of constitutional common law, or some mix of the two. Here I explore the question by comparing the relative merits of formal amendments and the constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over the amendment process, and also attempt to sketch the empirical conditions under which either process proves superior to the other. My principal target is a standard academic view that I shall call "the generic case against constitutional amendment." On this view, there are good general reasons to reject, or to indulge a presumption against, any proposed amendment. Among these reasons are the following claims: it is bad to "tamper" with the Constitution; the Constitution should not be "cluttered up" with amendments that will "trivialize" its majesty; constitutional amendments are "divisive" or "polarizing"; constitutional amendments may have bad unanticipated consequences; and constitutional amendments diminish the coherence of the constitutional text or of judicially-developed constitutional doctrine. Something like this view has become the conventional wisdom in the legal academy, following explicit arguments by Kathleen Sullivan and others. I argue that the generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of common law constitutionalism. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution over time - a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Once we have dispelled the nirvana fallacy underlying the generic case against amendment, constitutional updating is seen to pose a comparative institutional question. Constitutional amendment, on the one hand, and constitutional common law, on the other, are alternative institutional processes for managing the inevitable updating of constitutional law over time. Under what circumstances might one process or the other prove superior? What institutional considerations, or variables, determine their relative performance? I consider the strengths and weaknesses of each process: relative to common-law constitutionalism, the amendment process is less focused on the facts of particular cases (both for good and ill); puts less weight on the views of past judges (both for good and ill); allows for the participation of decisionmakers from a broader range of professions and backgrounds (both for good and ill); produces more enduring constitutional settlements, albeit at higher initial cost; and trades the benefits of flexibility for the benefits of rigidity. Amendments show to best advantage, relative to common-law constitutionalism, where the constitutional changes in question involve large value choices as opposed to technical improvements in the law, where constitutional change must be systemic and simultaneous rather than piecemeal, and where irreversible change is more valuable than reversible change.
I always learn from Vermeule, and I am frequently provoked as well! Download it while its hot!


Friday, September 17, 2004
 
Garrett on Framework Legislation Elizabeth Garrett (University of Southern California - Law School) has posted Conditions for Framework Legislation on SSRN. Here is the abstract:
    Congress structures some of its deliberation and decision making through framework legislation. Framework laws establish internal procedures and rules that will shape legislative deliberation and voting with respect to a specific subset of laws or decisions in the future. Although framework laws are passed in statutory form, the portions of the laws that set out internal frameworks are usually identified as exercises of the two houses’ constitutional rulemaking powers, and the right of either house to change the framework unilaterally is, in most cases, explicitly reserved. Framework laws are familiar, although little scholarly attention has been paid to them as a related legislative phenomenon in the United States. I specify some of the conditions that are necessary for the adoption of framework laws. In Part I, I present two necessary conditions that make it possible for Congress to use a framework law to deal with a set of particular decisions defined in the framework. Even when these conditions are present, Congress may decline to use the option of a framework, but without the two conditions, a framework is not an option for lawmakers. First, Congress must be able to identify a concrete problem and describe it with specificity so that the framework can be triggered in appropriate circumstances. Second, the partisan configuration of Congress is significant in several ways to the adoption of framework laws, although further empirical work focused on each of the two houses is required to specify this condition more fully. In Part II, I assess three conditions that could lead Congress to choose the statutory path with respect to framework laws, rather than using an internal vehicle like a concurrent or simple resolution. First, Congress may use a statute to signal that it is making a significant change in the way it does business and that it perceives the change as more durable than other rule changes. I conclude that this has little explanatory power. Second, and most importantly, Congress will use a statute when the internal procedural change is an integral part of a larger package that must be adopted simultaneously and contains some parts that must be enacted with legal effect. In many cases, the framework is part of a larger “inter-branch treaty” that affects both houses of Congress and the executive branch, often with provisions delegating authority to the President. This is a necessary condition for enactment of frameworks. Finally, path dependency and institutional learning play a role, so that when an area like budgeting or trade begins to be characterized by rulemaking statutes, then future changes also tend to be adopted by statute. This is a plausibility condition, making it more likely that internal rules will be adopted by statute, but it is not a necessary condition.
Highly recommended!


Thursday, September 16, 2004
 
Smith on Conscience Steven Douglas Smith (University of San Diego - School of Law) has posted The Tenuous Case for Conscience on SSRN. Here is the abstract:
    If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters? This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.
Highly recommended!


 
Vermeule on Constitutional Amendments & Constitutional Common Law Adrian Vermeule (University of Chicago Law School) has posted Constitutional Amendments and the Constitutional Common Law on SSRN. Here is the absract:
    Constitutions obsolesce rapidly, and must be updated over time to reflect changes in the polity's circumstances and citizens' values. What institution or process should be entrusted with the authority to do the updating? If periodic wholesale replacement of the constitution is infeasible, the plausible choices are the constitutional amendment process set out in Article V, flexible interpretation by judges under the banner of constitutional common law, or some mix of the two. Here I explore the question by comparing the relative merits of formal amendments and the constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over the amendment process, and also attempt to sketch the empirical conditions under which either process proves superior to the other. My principal target is a standard academic view that I shall call "the generic case against constitutional amendment." On this view, there are good general reasons to reject, or to indulge a presumption against, any proposed amendment. Among these reasons are the following claims: it is bad to "tamper" with the Constitution; the Constitution should not be "cluttered up" with amendments that will "trivialize" its majesty; constitutional amendments are "divisive" or "polarizing"; constitutional amendments may have bad unanticipated consequences; and constitutional amendments diminish the coherence of the constitutional text or of judicially-developed constitutional doctrine. Something like this view has become the conventional wisdom in the legal academy, following explicit arguments by Kathleen Sullivan and others. I argue that the generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of common law constitutionalism. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution over time - a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Once we have dispelled the nirvana fallacy underlying the generic case against amendment, constitutional updating is seen to pose a comparative institutional question. Constitutional amendment, on the one hand, and constitutional common law, on the other, are alternative institutional processes for managing the inevitable updating of constitutional law over time. Under what circumstances might one process or the other prove superior? What institutional considerations, or variables, determine their relative performance? I consider the strengths and weaknesses of each process: relative to common-law constitutionalism, the amendment process is less focused on the facts of particular cases (both for good and ill); puts less weight on the views of past judges (both for good and ill); allows for the participation of decisionmakers from a broader range of professions and backgrounds (both for good and ill); produces more enduring constitutional settlements, albeit at higher initial cost; and trades the benefits of flexibility for the benefits of rigidity. Amendments show to best advantage, relative to common-law constitutionalism, where the constitutional changes in question involve large value choices as opposed to technical improvements in the law, where constitutional change must be systemic and simultaneous rather than piecemeal, and where irreversible change is more valuable than reversible change.