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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, March 31, 2005
 
Entry Level Hiring--Updated Post Now Appears in April For the current report, follow this link.


 
Ayres on Sander Check out Does Affirmative Action Reduce the Number of Black Lawyers?, posted by Ian Ayres on Balkinization.


 
More on Sunstein & Vermeule I posted yesterday on Cass Sunstein & Adrian Vermeule's paper--Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs. Over at Mirror of Justice, Rick Garnett has a post that comments:
    [I]t is not obvious to me that the new deterrence evidence "greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death"; nor am I sure that "[c]apital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment." If our objections to the death penalty are non-consequentialist, and focus on the immorality of its imposition, then it is not clear that our objections are vulnerable to evidence or awareness that by complying with a non-consequentialist moral rule against intentional killing we are making more likely immoral killings by others. To fail to prevent another's intentional killing is not -- is it? -- the same thing as to intentionally kill another.
And Michael Perry also posts:
    My colleague here at Emory Law, Joanna Shepherd, is one of the economist-authors of the work on which Sunstein & Vermeule rely. But in a more recent paper, Professor Shepherd reaches a more nuanced conclusion: that in the United States, “executions deter murders in six states, . . . have no effect on murders in eight states, and . . . increase murders in thirteen states.” She writes:
      [E]mpirical analyses indicate that there is a threshold effect that explains the differing impacts of capital punishment. On average, the states with deterrence execute many more people than do the states where executions increase crime or have no effect. The results of this paper help to explain the contrasting conclusions for earlier papers: the deterrence or no-deterrence conclusion depends on the jurisdiction examined. My results also have important policy implications: to achieve deterrence, states must execute several people. If states are unwilling to establish such a large execution program, it may be better to perform no executions.
    Joanna M. Shepherd, Deterrence versus Brutalization: Capital Punishment’s Differing Impacts Among States (draft, October 2004).
I'm not sure that Perry's point really undermines what I take to be the central thrust of Sunstein & Vermeule's argument--which seems entirely consistent with Shepherd's point that an effective death penalty may require "a large execution program."And you may also be interested in two posts by Will Baude (here and here) and more collected here by Doug Berman.


 
Thursday Calendar
    University of Pennsylvania Legal Theory Workshop: Professor Edna Ullman-Margolit, Hebrew University.
    Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?"
    Boston University School of Law: Wendy Gordon.
    Florida State University Law: Jody Kraus, University of Virginia.
    George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice.
    George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip".
    University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System.
    University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science.


 
Barnett on Kennedy Randy Barnett (Boston University) has posted Grading Justice Kennedy: A Reply to Professor Carpenter (Minnesota Law Review, Vol. 89, p. 1500, 2005) on SSRN. Here is the abstract:
    In my article, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy's opinion in Lawrence is potentially revolutionary because it protects "liberty" rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, Is Lawrence Libertarian? (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy's opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentiallyrevolutionary approach, for which I give Justice Kennedy an A.
I read everything by Barnett. Dowload it while its hot!


 
Gerken on Dissent Heather Gerken (Harvard University - Harvard Law School) has posted Dissenting by Deciding (Stanford Law Review, Vol. 56, 2005). Here is the abstract:
    On a conventional understanding of dissent, dissenters have two choices with regard to governance: act moderately or speak radically. To the extent that would-be dissenters want to govern - to wield the authority of the state - they must bargain with their votes to gain concessions from the majority. Would-be dissenters who deploy this strategy take part in an act of governance, but it is governance of a moderate sort. Alternatively, would-be dissenters can speak radically by freely stating their views in a dissenting opinion or minority report. In doing so, dissenters sacrifice the chance to be part of the governing majority; they speak with a critical rather than authoritative voice. What is missing from the usual account of dissent is a third possibility: that would-be dissenters could act radically. We have trouble envisioning dissent taking the form of a governance decision. Our conventional intuition is that dissenting means speaking truth to power, not with it. After all, we might think, if would-be dissenters had enough votes to control the outcome of a decisionmaking process, they wouldn't be "dissenters" anymore. "Dissenting by deciding" seems like a contradiction in terms. The main reason we overlook the possibility of dissenting by deciding is that we tend to conceive of democratic bodies as unitary. Where decisionmaking power is disaggregated - as with juries, school committees, or local governments - global minorities can constitute local majorities. Disaggregated institutions can thus allow dissenters to decide, to act on behalf of the polity. One example of dissenting by deciding occurred when San Francisco spent several weeks marrying gay and lesbian couples. The principle embodied in San Francisco's decision was no different than the argument found in editorials, judicial dissents, and ongoing public debates. What was different was the form dissent took. Dissenting by deciding can also take place when a school board mandates the teaching of creationism or a jury engages in nullification. These decisionmakers subscribe to the same set of commitments held by individuals whom we would unthinkingly term "dissenters." But they express disagreement not through conventional means, but by offering a real-life instantiation of their views. Dissenting by deciding, then, should be understood as an alternative strategy for institutionalizing channels for dissent within the democratic process. But because dissent has not been conceptualized in these terms, scholars have not given adequate thought to which form of dissent is preferable, and when. This paper takes a first step in that direction. The payoff for thinking about dissent in the terms proposed here is a more comprehensive set of categories for thinking about how best to institutionalize it.


 
Solove on Dworkin Daniel J. Solove (George Washington University Law School) has posted Postures of Judging: An Exploration of Judicial Decisionmaking (Cardozo Studies in Law & Literature, Vol. 90, p. 173, 1997) on SSRN. Here is the abstract:
    This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkin’s principled jurisprudence cannot explain. The article focuses on Fyodor Dostoyevsky's The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. An examination of Dostoyevsky's novel demonstrates deficiencies in Dworkin's theories and illustrates how literature can answer questions that Dworkin's jurisprudence cannot.


 
Coffee on a Theory of Corporate Scandals John C. Coffee Jr. (Columbia Law School) has posted A Theory of Corporate Scandals: Why the U.S. and Europe Differ on SSRN. Here is the abstract:
    A wave of financial irregularity broke out in the United States in 2001-2002, culminating in the Sarbanes-Oxley Act of 2002. A worldwide stock market bubble burst over this same period, with the actual market decline on a percentage basis being somewhat more severe in Europe. Yet, no corresponding wave of financial scandals involving a similar level of companies broke out in Europe. Indeed, those scandals that did arise in Europe often had American roots (e.g., Vivendi, Ahold, Adecco, etc.). Given the higher level of public and private enforcement in the United States for securities fraud, this contrast seems perplexing. What explains this contrast? This paper submits that different kinds of scandals characterize different systems of corporate governance. In particular, dispersed ownership systems of governance are prone to the forms of earnings management that erupted in the United States, but concentrated ownership systems are much less vulnerable. Instead, the characteristic scandal in concentrated ownership economics is the appropriation of private benefits of control. Here, Parmalat is the representative scandal, just as Enron and WorldCom are the iconic examples of fraud in dispersed ownership regimes. Is this difference meaningful? This article suggests that this difference in the likely source of, and motive for, financial misconduct has implications both for the utility of gatekeepers as reputational intermediaries and for design of legal controls to protect public shareholders. What works in one system will likely not work (at least as well) in the other. The difficulty in achieving auditor independence in a corporation with a controlling shareholder may also imply that minority shareholders in concentrated ownership economies should directly select their own gatekeepers.


 
Guzelian on Scientific Free Speech Christopher P. Guzelian (Northwestern University - School of Law) has posted Scientific Free Speech on SSRN. Here is the abstract:
    Audiences frequently mistake speakers' viewpoints (non-scientific speech) or authority-based opinions (scientific speech not justified by scientific knowledge) as Evidence-Based conclusions (scientific speech justified by scientific knowledge). It logically follows from settled free speech theory and fundamental tort and criminal principles ("Kiodynamic" principles) that misleading authority-based (scientific) opinions causing legally cognizable harms are punishable in tort or criminal law unless: (1) traditional tort or criminal defenses apply; or (2) the speaker has carefully standardized legislative authorization to mislead. The First Amendment may also afford a private organization a presumption that its members have assumed the risk of being misled by organizational opinions. This essay further contends that: (1) current evidentiary standards controlling expert witness testimony cannot distinguish whether a relevant scientific proposition is presently known to be a fact, a falsehood, or an uncertainty, regardless of which gatekeeper rule (Daubert, Frye, or Havner) controls. These standards assure that misleading opinions, but not necessarily Evidence-Based conclusions, reach the fact-finder in every case where dueling experts both testify; (2) current renditions of the adversarial expert witness system are therefore impermissible under Kiodynamic tort and criminal law principles, and violate the First Amendment if used specifically to resolve scientific free speech controversies; (3) state and federal governance (including the judiciary) must be restructured, so that Evidence-Based Logic (EBL) is the exclusive basis for governmental declarations of scientific knowledge.


 
Conference Announcement: The Capability Approach
    5th International Conference on the Capability Approach Knowledge and Public Action: Education, Responsibility, Collective Agency, Equity 11-14 September 2005, UNESCO, Paris, France français Call for Papers--Deadline Extended to April 15 To submit an application to have a paper considered for inclusion in the conference, please click here. The Human Development and Capability Association (HDCA) will organise the 5th annual Conference on the Capability Approach next September 2005 in Paris and Versailles, France, with the support of: the Centre of Economics and Ethics for Environment and Development (University of Versailles) the Division for the Promotion of Quality Education, UNESCO the French Institute for Research on Development (IRD) the French Agency for Development (AFD) the IMPACT Network on public policies against poverty and inequality As for the previous years, the following institutions are associated to the organisation of this conference: the Interdepartmental Centre for Social Philosophy and the European School for Advanced Studies in Cooperation and Development (University of Pavia) the Capability and Sustainability Centre, Von Hugel Institute, (University of Cambridge) the International Institute for Sustainable Development (Canada) the Global Equity Initiative (Harvard University) The conference will consist of four types of sessions: The training sessions will review the basic concepts of the capability approach and applied work related to education, public actions and measurement. These sessions are set up before the start of the conference, i.e. in the afternoon of Sunday 11th September. The parallel sessions are for the presentation and discussion of the full academic papers. These will be distributed according to a few key topics as underlined by the participants themselves through the papers sent. The plenary sessions will focus on the main conference theme Knowledge and Public Action and the related sub-themes Education, Responsibility, Collective Agency and Equity. Keynote speakers will debate the fundamental issues. The posters sessions will allow researchers and practitioners to present on-going research and project. This conference, like the previous ones in Cambridge and Pavia, is open to all economists, philosophers, social and political scientists, development experts, policy makers, and graduate students, who are developing and actively applying the capability approach, for instance to the human development paradigm. It intends to serve as an ongoing forum for intellectual innovation, communication and collaboration, dealing with these topics, with reference to the work initiated by Amartya Sen and Martha Nussbaum. These scholars will contribute to the conference. Therefore all scholars whose research is extending the capability approach, both its conceptual basis, through theoretical as empirical studies and through field operations, are welcome to this event. They will have the opportunity to debate ideas and projects together. While the papers may come from any discipline and may be theoretical, applied, or policy-based, every paper must fundamentally engage with applying, extending, or criticising the capability approach. This can be done through the human development paradigm and address topics such as: philosophical and ethical foundations, issues in operationalizing the capability approach, capability measurement and empirical analysis, gender, public action, democratic practice, poverty and inequality, ecosystems and sustainable development, education, health and AIDS, disabilities, migrations, culture, religious dimensions, conflicts, etc. We will adjust the categories of the parallel sessions according to the content of the papers received. So if you are engaged in important research using the capability approach with respect to another topic, do not hesitate to submit it. Naturally, we are seeking high quality research papers that explicitly carry forward some of the signal insights of the capability approach and the human development paradigm. Papers critical of this approach are equally welcome. The special theme of this year conference is Knowledge and Public Action. It includes four research directions, on which participants are encouraged to submit papers. 1. Quality Education - In order to improve the quality of education and contribute to the decade on education for sustainable development, four key pillars are considered: learning to know, learning to do, learning to be, and learning to live together, all in qualitative and quantitative ways, referring to the persons' psycho-social capabilities (i.e. life-skills). These would guide the design of appropriate programs to overcome disability, AIDS and more generally all forms of vulnerability; but also, within a long term perspective to protect ecological environment and social participation. 2. Responsibility as Source of Freedom - The issue is to understand how possible it is to increase the level of personal freedoms while facing social obligations and responsibility. How do capability, freedom and responsibility relate altogether? This may require to re-examine the definition of the individual vs. the person, to combine ethical principles from the Good and from the Just, in order to design the appropriate public policies which will aim at expanding people's capability. 3. Collective Agency, Personal Capabilities, Institutions - The concept of agency helps relating collective actions to the capability approach. However, how could we link the micro level of the person and the household to the meso level of social groups and institutions, in order to reach the macro thinking at the level of regions and State? Public policies geared towards a sustainable human development really need to consider and interrelate these various levels of analysis. 4. Public Action and Sharing with Equity - How would the capability approach be related to the sustainable view of development? Is it by ensuring an equitable distribution of capabilities within a generation or through an equitable transfer of capabilities from one generation to the other? What would be then the required processes of social protection, sharing and redistribution that would ensure social sustainability? The deadline for the submission of a paper proposal is the 15th April 2005. All proposals will be reviewed by the Conference Scientific Committee and notice of acceptance of the papers will be sent by early May 2005. Then the full papers are expected on the 1st July 2005. Due to the large number of expected papers, it is important to respect these two dates. Proposals and papers which are not received by the deadlines will be rejected or eventually put in the poster sessions. For submitting proposals, please use the enclosed application form that should be sent to Jean-Luc Dubois (hdcaparis@aol.com). The Conference Scientific Committee is composed of: Arun Abraham, University of Pennsylvania, USA Sabina Alkire, Global Equity Initiative, Harvard University, USA Jérôme Ballet, Université de Versailles, France Enrica Chiappero-Martinetti, University of Pavia, Italy Flavio Comim, Capability and Sustainability Centre, St. Edmund's College, Cambridge, UK Séverine Deneulin, St. Edmund's College, Cambridge, UK Jean Luc Dubois, Centre d'Economie et d'Ethique pour l'Environnement et le Développement, Institute of Research for Development (IRD), France Anantha K. Duraiappah, International Institute for Sustainable Development, Winnipeg, Canada Reiko Gotoh, Ritsumeikan University, Japan Anna-Maria Hoffmann, UNESCO, Paris Jean-Pierre Lachaud, Université de Bordeaux, France François-Régis Mahieu, Université de Versailles, France Mozaffar Qizilbash, University of East Anglia, Norwich, UK Ingrid Robeyns, University of Amsterdam, Netherlands The conference fees will be around 260 euros for academicians and professionals and 120 euros for scholars from LDC's and students. The cost of accommodation in hotels will be around 80 euros per night and in university rooms around 60 euros per night. People who wish to be considered for financial assistance should fill out the relevant section of the application form. Since fellowships are scarce, they will be required to submit their papers in time. More detailed information about the conference organisation, as well as transport and accommodation facilities, will be posted after the 1st of May on the conference web site: http://www.hd-ca.org/conference To submit an application to have a paper considered for inclusion in the conference, please click here. For any further information, please contact: Jean-Luc Dubois Centre d'Economie et d'Ethique pour l'Environnement et le Développement (C3ED) Université de Versailles St. Quentin en Yvelines (UVSQ) 47 Bd Vauban - 78047 Guyancourt Cedex, France Tel: 00.33.1.39.25.56.86 - Fax: 00.33.1.39.25.53.00 Email: hdcaparis@aol.com


 
LoPucki on Multinational Bankruptcy Lynn M. LoPucki (University of California, Los Angeles - School of Law) has posted Global and Out of Control (American Bankruptcy Law Journal, Vol. 79, June 2005) on SSRN. Here is the abstract:
    Multinational bankruptcy cases have tremendous potential for forum shopping because changing forum country also changes the law that will determine the debtor's remedies and the creditors' priorities. That potential has been held in check by the multinational companies' need that the courts of other countries recognize the decree of the forum court. Thus, the need for recognition is the lynchpin that holds forum shopping largely in check. Many of the world's leading bankruptcy professionals are now seeking to eliminate the recognition requirement by adopting "universalist" laws and regulations. This paper briefly describes three such efforts. First, the European Union has adopted a regulation, effective in 2002, requiring EU countries to recognize multinational bankruptcies filed in the debtor's "home country" (provided that country is in the EU). Second, UNCITRAL has promulgated, and the U.S. is about to adopt, a Model Law that encourages recognition of multinational bankruptcies filed in the debtor's "home country." Third, the American Law Institute has promulgated "Principles of Cooperation in Transnational Insolvency Cases" that, when combined with the Model Law, make recognition of home country multinational bankruptcies effectively mandatory. This paper was initially published as Chapter 8 of Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Courts (2005). Other chapters of the book describe forum shopping and court competition in and to the U.S. This paper describes rampant forum shopping and court competition in European Union cases since the adoption of the regulation. It predicts that worldwide rampant forum shopping and court competition will result from the adoption of the Model Law, and explains how that will occur. Universalist bankruptcy laws lead to forum shopping because multinational companies do not have "home countries" in any meaningful sense and, to the extent that they do, they can easily change them to gain legal advantage over their creditors. The paper speculates that some "universalists" are deliberately seeking to throw the international bankruptcy system into chaos in order to force countries to rapidly harmonize their laws (which will reduce the incentives for forum shopping). What the Universalists have not anticipated, however, is the potential for a "race to the bottom" as courts and countries compete for the multibillion dollar business of multinational bankruptcy.


Wednesday, March 30, 2005
 
Sunstein & Vermeule on a Moral Requirement for Capital Punishment Cass R. Sunstein and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs on SSRN. Here is the abstract:
    Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.
I am reminded of a perhaps apocryphal story about Tom Nagel (the NYU philosopher). When asked how many lives it took to justify the killing of an innocent, Nagle supposedly said, "17"--intending to demonstrate the absurdity of the question. I wonder about the claim that "government is a special kind of moral agent"--yes, special--but government only acts through individuals, who may have special roles, but are ordinary agents. Highly recommended!
Update: For more, including criticism of Sunstein & Vermeule, scroll up or surf here.


 
Patterson on Dworkin Dennis Patterson has posted Dworkin on the Semantics of Legal and Political Concepts on SSRN. Here is the abstract:
    In a recent comment on H.L.A. Hart's 'Postscript' to The Concept of Law, Ronald Dworkin claims that the meaning of legal and political concepts may be understood by analogy to the meaning of natural kind concepts like tiger, gold and water. This article questions the efficacy of Dworkin's claims by challenging the use of natural kinds as the basis for a semantic theory of legal and political concepts. Additionally, even if there are natural kinds, Dworkin's arguments for their efficacy in jurisprudence are problematic and unpersuasive. One problem for Dworkin is that his embrace of natural kinds undermines the "fit" side of his fit/justification model of adjudication. Finally, because in matters of value there is no methodological equivalent to the scientific method, there is little hope of finding hidden essences to explain the meaning of legal and political concepts.
Don't miss this! I always learn from Patterson. Highly recommended!


 
McCann on Nutritional Labeling Michael McCann has posted Comparing Legal, Economic, and Legislative Approaches to Nutritional Labeling of Fast Food Items on SSRN. Here is the abstract:
    This article explores four theoretical approaches to the nutritional labeling of fast food items: 1) The Voluntary Agreement Model; 2) The Free Market/Light Menu Model; 3) The Litigation Model; and 4) The Legislative Model. These models are explored in the context of the increasing frequency at which Americans consume fast food, the surging percentage of Americans who are overweight, and the recognition that more than half of all obesity-related costs are borne by taxpayers and employers. Related analysis also pertains to an application of Consumer Choice Theory to food choice. After concluding that the first three models are likely deficient in redressing related concerns, this article recommends that fast food restaurants generate full nutritional disclosure for items aimed at children 14 and under; that such disclosure replicate the format established by the Nutrition Labeling and Education Act; and that it be available at the point-of-sale.


 
SSRN Rankings of Tax Faculty Check out this post on TaxProf Blog. Louis Kaplow is Number One. And if you missed it, here is the link (registration required) to the SSRN ranking of law faculty by downloads in the last twelve months.


Tuesday, March 29, 2005
 
Hadfield on the 9/11 Compensation Fund Gillian Hadfield (The Law School, University of Southern California) has posted The September 11th Victim Compensation Fund: An Unprecedented Experiment in American Democracy (THE FUTURE OF TERRORISM RISK INSURANCE, Defense Research Institute (DRI), 2005) on SSRN. Here is the abstract:
    September 11th laid bare the foundations not only of the Twin Towers in downtown Manhattan but also of American ambivalence about a central democratic institution, the civil justice system. American democracy is built on the idea that ordinary individuals can participate in governance, taking action to ensure the laws are followed by activating and indeed to some extent directing the power of the state through the judicial branch. American businesses have relied on the availability of the courts to resolve their disputes about how their losses caused by the terrorist attacks should be distributed. But Congress sought to divert non-business entities out of the courts, rushing to provide an alternative source of compensation which it would make available to those who waived their right to litigate their disputes with those who may have contributed to their losses. In collapsing the compensation (actually insurance, for compensation implies a payment from one who caused an injury to a person harmed by that injury) function of the civil justice system with its democratic function - requiring access to one be purchased through disavowal of the other - Congress contributed to the erosion of democratic commitment to litigation as an important means by which the 'rule of law' is honored. The VCF was, as the Special Master concluded, a generous expression of shared loss by the American public and served well, as the RAND study concluded, to fill the gaps in other sources of social insurance. But by tying access to that insurance to the waiver of civil litigation, the VCF went farther than it had to and farther than it should have. The problems with civil litigation - its extraordinary cost, complexity and slowness - are real, and require real solutions. But closing off the courts is not among the solutions a democratic society should entertain. Congress had the opportunity, and still does, to devise a democratic response to the problems of civil litigation. An alternative in cases of mass tragedy such as September 11th could well provide both for democratic commitments and a reasonable and contained process. Reasonably just substitutes for civil actions should, perhaps constitutionally must, provide a substitute not only for the money plaintiffs might recover through this means, but also for the opportunity civil litigation gives ordinary citizens to participate in the institutions that give meaning to the rule of law.


 
Marmor on Textualism Andrei Marmor (University of Southern California - Law School) has posted The Immorality of Textualism (Loyola Law Review, 2005) on SSRN. Here is the abstract:
    In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.
A provocative thesis, given the difficulties in providing evidence for the true motivations, not of "textualism," which has none, but of its proponents, on the bench and in the academcy.


 
Conference Announcement: Principles of Association in British History at Chicago
    The Nicholson Center for British Studies at the University of Chicago presents: Conference: "Principles of Association in British History" Friday, April 8, 2005, 8:30am - 6pm Classics Building (1010 E. 59th Street), Room 10 This conference will explore the links, contrasts, and similarities between the principles that are thought to guide human association in different areas of social life. Several renowned scholars will head the discussion, among them Mary Lyndon Shanley (Vassar), Samuel Fleischacker (UIC), and Avigail Eisenberg (British Columbia). Several U of C faculty will also take part: Mary-Anne Case (Law School), Jacob Levy (Political Science), Patricia Nordeen (Chicago College). An inter-disciplinary event, of interest to students and scholars of Political Science, Philosophy, History, English, Economics, Sociology, Religious Studies, and related fields, the conference will encourage discussions in a broad scholarly context, drawing connections between disciplines and areas of study that are often isolated from each other. For more information please contact Mara G. Marin at or Víctor M. Muñiz-Fraticelli at . Co-sponsors: The Chicago Center for Democracy, the Committee on Social Thought, the Center for Gender Studies, and the Department of Political Science at the University of Chicago. Conference Schedule: 8:30 - 8:45: Opening Remarks 8:45 - 10:30: Panel 1. Politics and Association Samuel Fleischacker, University of Illinois at Chicago "Face-to-face Relationships in Adam Smith: Some Political Implications" Michael Goode, University of Illinois at Chicago “Peace Shall Move Mountains: An Examination of Seventeenth Century Quaker Pacifism and the 1660 Declaration" Thomas Weber, University of Chicago “Principles of Association in Oxford Colleges between c. 1880 and 1914” 10:45 - 12:30: Panel 2. Identity and Pluralism Avigail Eisenberg, University of British Columbia "Mindful Neglect: Identity Politics in Liberal and Democratic Traditions" Jacob Levy, University of Chicago “British Pluralism, Liberalism, and Medievalism" Jane Silloway, Northwestern University “Rewriting the Reformation” (Lunch Break) 2:00 - 3:45: Panel 3. Marriage, Sexuality, and the Family Mary Anne Case, University of Chicago Law School "The Role of the State in Marriage and in the Business Corporation" Mary L. Shanley, Vassar College "'Marriage Contract and Social Contract' Revisited: Persistent Dilemmas for Liberal Theory" Hristomir Stanev, University of Chicago “Wayward Sexuality and Domestic Instability in Thomas Dekker’s City Comedies” 4:00 - 5:45 : Panel 4. The Sovereign and its Subjects Robert McJimsey, Colorado College "Founding the Stuart Monarchy: Honor and Virtue at the Court of James I" Victor M. Muniz-Fraticelli, University of Chicago “‘On Resistance and Rebellion in Shakespeare" Dana Rovang, University of Chicago “The Head of the King: Madness, Passion and Sovereignty in Late-Eighteenth Century England” 5:45 - 6:00: Closing Remarks


 
Bodie on the Future of the Casebook Matthew T. Bodie (Hofstra University - School of Law) has posted The Future of the Casebook: An Argument for an Open-Source Approach on SSRN. Here is the abstract:
    Despite dramatic technological change, the thick, attractively-bound casebook remains ensconced as the written centerpiece of legal education. That will soon change - but its replacement has not been established. This paper argues that the legal academy should take this opportunity to implement an "open source" approach to future course materials. Guided by analysis and examples of commons-based peer production such as open source software, professors could establish electronic commons casebooks with a myriad of materials for every course. These joint databases would unshackle individual creativity while engendering collaboration on levels previously impossible. Although there may be concerns that such a project would not draw any interest, or might be swamped by too much interest, the successes of other peer-production projects demonstrate that such concerns are generally unwarranted or manageable. Copyright ultimately poses the biggest difficulty, but even that barrier can be circumvented to greater and lesser degrees. Although as yet an untried experiment, an open source approach has the potential to open a new era in legal pedagogy.


Monday, March 28, 2005
 
Pildes on the 2003 Supreme Court Term Rick Pildes (NYU) has posted The Constitutionalization of Democratic Politics - The Supreme Court, 2003 Term (Harvard Law Review, Vol. 118, No. 29, 2004) on SSRN. Here is the abstract:
    Around the world, courts in the last two decades have increasingly extended constitutional law to oversee the basic structure of democracy itself. This development constitutes a significant transformation in the object of constitutional law - a shift from the conventional individual rights and anti-discrimination focus and toward judicial engagement with the institutions and processes of democratic politics. Whether resolving disputed Presidential elections, evaluating the design of representative institutions, determining the role of political parties, assessing the financing of elections, or even managing the transition from authoritarian to democratic regimes, courts and constitutional law have now become central actors in organizing the way democracy is practiced. The first aim of this Foreword is to make this transformation fully visible. The Foreword focuses primarily on the United States Supreme Court, where these developments are most pronounced. The Foreword then turns to assessing this new frontier of constitutional law; the Foreword argues that, thus far, courts have done both too little and too much in the way they have constitutionalized the essential structures of democracy. Courts have been insufficiently responsive to the tendency of those holding political power to structure the ground rules of democracy to entrench themselves more deeply in power. At the same time, courts have inappropriately constitutionalized, without sufficient justification, the broad rights of politics - to vote, to speak, to associate - in ways that wrongly limit the ability of democracies to experiment with new ways of organizing democratic politics. Given the disaffection with current forms of democracy expressed in many mature democracies today, this judicial tendency to constitutionalize existing democratic arrangements and freeze them in place threatens the ability of democracies to revise themselves. As courts enter this new domain, the Foreword offers a theoretical and doctrinal framework that defines the role constitutional law ought to play - more expansive in some contexts, less expansive in others - in overseeing the structure of democracy. The Foreword then applies this framework to a number of specific issues: partisan gerrymandering; the representation of diverse groups in political bodies; the legal regulation of political parties; the role of independent bodies to oversee election practices; and campaign financing.
I take special pleasure in recommending Pildes's elegant and interesting foreward to the Supreme Court issue of the Harvard Law Review.


 
Monday Calendar
    Boston University School of Law: David Dana (Northwestern), "Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation" (This is the SSRN version of the paper, which may differ from the one presented at BU). Here is a taste:
      In both federal and state practice, judges must certify class actions for the class actions to proceed, and must approve class settlements for those class settlements to have any legal effect.1 Judges may or may not make explicit findings regarding the adequacy of representation class members received, but even where then are no explicit findings, judicial certification of a class and approval of a class settlement arguably implies a finding of adequacy of representation.2 Why then should class members ever be able to challenge the settlement in subsequent actions? Why should they not be bound to the settlement if a court explicitly, or even just implicitly, has held that they were adequately represented in the process that produced the settlement? To answer that question, we must first unpack the concept of “adequate representation.” Adequacy of representation in the class context cannot mean what it means in non class litigation – that the lawyer faithfully attend to the client ’s interest, advise the client of the various options available to her, and give her the opportunity to make the ultimate decisions about whether to accept or reject a settlement offer. In the non-class-action litigation context, the client is actually present, or at least could be if she so chooses. It seems reasonable, therefore, that the law hold her to the choices she made even if those choices result in different consequences from those that she anticipated.4 In the class action context, the client –the class members or at least almost all of them – are not present ; indeed, many class members are never even aware of the existence of the class litigation to which they are, in theory, a party. They are represented only virtually, by means of class representatives. And since class representatives are almost always nominal actors,5 the absent class members are in truth represented only by class counsel, acting, typically, with minimal or no real client input.
    I read an earlier version of the paper, which is highly recommended!
    Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:
      This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio. The patent portfolio theory thus explains what is known as "the patent paradox": in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected value of individual patents has diminished. We find the benefits of patent portfolios to be so significant as to suggest that firms' patenting decisions are essentially unrelated to the expected value of individual patents; because patent portfolios simultaneously increase both the scale and the diversity of available marketplace protections for innovations, firms will typically seek to obtain a large quantity of related patents, rather than evaluating their actual worth. The result—which we find widely recognized in commercial circles—is that the modern patenting environment exhibits (and requires) a high-volume, portfolio-based approach that is at odds with scholars' traditional assumptions. The implications of the patent portfolio theory are important and widespread. First, the explanatory power of the theory allows resolution of not only the patent paradox, but many of the otherwise-puzzling observable patterns in the modern patenting environment—such as firm-size differences in patent intensity and litigation rates. Second, the patent portfolio theory neatly complements the prior theories that have sought to explain modern patent value, strengthening their relationship with the reality of patenting behavior—and confirming that the value of patents has expanded beyond traditionalist notions. Third, the patent portfolio theory allows a number of important predictive insights into future trends in the patent system, allowing policymakers and scholars to frame their inquiry within a range of likely outcomes. In our analysis, the patent portfolio theory does not suggest a better, brighter future for the patent system, but does build a foundation for the important academic and policy-related work that springs from this initial treatment.


 
Leiter on the Hermeneutics of Suspicion Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud (Brian Leiter, THE FUTURE OF PHILOSOPHY, Clarendon Press, pp. 74-105, 2004). Here is the abstract:
    Paul Ricoeur famously dubbed that great triumvirate of late nineteenth - and early twentieth-century thought - Marx, Nietzsche, and Freud - "the school of suspicion," by which he meant those thinkers who taught us to regard with suspicion our conscious understandings and experience, whether the deliverances of ordinary psychological introspection about one's desires ("I really want to be rich!"), or the moral categories political leaders and ordinary citizens apply to themselves and the social world they inhabit ("an inheritance tax is an immoral death tax!"). "Beneath" or "behind" the surface lay causal forces that explained the conscious phenomena precisely because they laid bare the true meaning of those phenomena: I don't really want lots of money, I want the love I never got as a child; survivors have no moral claim on an inheritance, but it is in the interests of the ruling classes that we believe they do; and so on. Recent years have been, in now familiar ways, unkind to Marx and Freud. Yet instead of a frontal assault on the critiques of the explanatory programs of Marx and Freud, the defense of their legacy in the English-speaking world has gradually fallen to those I will call moralizing interpreters of their thought. The moralizing readers de-emphasize (or simply reject) the explanatory and causal claims in the work of Marx and Freud, and try to marry more-or-less Marxian and Freudian ideas to various themes in normative ethics and political philosophy. Explanation of phenomena is abandoned in favor of the more traditional philosophical enterprise of justification, whether of the just distribution of resources or the possibility of morality's authority. So, for example, G.A. Cohen, the most influential of English-language Marx interpreters in recent decades, has declared that "Marxism has lost much or most of its [empirical] carapace, its hard shell of supposed fact" and that, as a result, "Marxists...are increasingly impelled into normative political philosophy." (Under the influence of Habermas, the Marxist tradition has taken a similar turn on the Continent.) Similarly, a leading moral philosopher notes that, "Just when philosophers of science thought they had buried Freud for the last time, he has quietly reappeared in the writings of moral philosophers" and goes on to claim that "Freud's theory of the superego provides a valuable psychological model for various aspects of [Kant's] Categorical Imperative." On these new renderings, Marx and Freud command our attention because they are really just complements (or correctives) to Rawls or Korsgaard, really just normative theorists who can be made to join in a contemporary dialogue about equality and the authority of morality. Nietzsche, too, has been transformed by moralizing interpreters, though in a somewhat different way. The crucial development here has been the retreat from the natural reading of Nietzsche as a philosopher engaged in an attack on morality -a reading first articulated by the Danish scholar Georg Brandes more than a century ago - in favor of a reading which presents Nietzsche as fundamentally concerned with questions of truth and knowledge: the moralistic scruples of interpreters are satisfied by treating Nietzsche as concerned with something else, something less morally alarming than a "revaluation of values." I shall argue that, in fact, all three of the great practitioners of the hermeneutics of suspicion have suffered at the hands of moralizing interpreters who have resisted the essentially naturalistic thrust of their conception of philosophical practice. As a matter of both textual exegesis and intellectual importance, Marx, Nietzsche, and Freud are best read as primarily naturalistic thinkers, that is thinkers who view philosophical inquiry as continuous with a sound empirical understanding of the natural world and the causal forces operative in it. When one understands conscious life naturalistically, in terms of its real causes, one contributes at the same time to a critique of the contents of consciousness: that, in short, is the essence of a hermeneutics of suspicion.
Also, Leiter has posted a revised version of his Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence.


 
Zacharias on Lawyer Assistance Programming Fred C. Zacharias (University of San Diego School of Law) has posted A Word of Caution for Lawyer Assistance Programming (Georgetown Journal of Legal Ethics, Vol. 18, 2005) on SSRN. Here is the abstract:
    With increasing awareness of the problem of substance abuse in the legal profession has come the natural desire to develop responses. Formal bar-sponsored "lawyer assistance" programs have sprouted throughout the United States. Many of these programs have been accompanied by rules that permit lawyers to seek help on a confidential basis. There is a very real tension between the functions of the bar in assisting lawyers in reforming their behavior, or seeking help for their addiction, and in protecting clients against lawyer misconduct. This tension has ramifications for the programs and rules bar organizations may wish to institute, for the principles that should govern administrators of lawyer assistance and bar disciplinary programs, and for the emphasis bar associations may wish to adopt for their activities. The goal of this brief comment is to identify a few of the issues that each state and local bar association should address before reaching any conclusions regarding the appropriateness of particular forms of lawyer assistance.


 
Arewa on Sampling Olufunmilayo Arewa (Case Western Reserve University - School of Law) has posted From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context on SSRN. Here is the abstract:
    Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.


Sunday, March 27, 2005
 
Legal Theory Calendar
    Sunday, March 27
      Cardozo Law School: Conference, The Nuremberg Trials: A Reappraisal and Their Legacy
    Monday, March 28
      Boston University School of Law: David Dana (Northwestern), "Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation" (This is the SSRN version of the paper, which may differ from the one presented at BU). Here is a taste:
        In both federal and state practice, judges must certify class actions for the class actions to proceed, and must approve class settlements for those class settlements to have any legal effect.1 Judges may or may not make explicit findings regarding the adequacy of representation class members received, but even where then are no explicit findings, judicial certification of a class and approval of a class settlement arguably implies a finding of adequacy of representation.2 Why then should class members ever be able to challenge the settlement in subsequent actions? Why should they not be bound to the settlement if a court explicitly, or even just implicitly, has held that they were adequately represented in the process that produced the settlement? To answer that question, we must first unpack the concept of “adequate representation.” Adequacy of representation in the class context cannot mean what it means in non class litigation – that the lawyer faithfully attend to the client ’s interest, advise the client of the various options available to her, and give her the opportunity to make the ultimate decisions about whether to accept or reject a settlement offer. In the non-class-action litigation context, the client is actually present, or at least could be if she so chooses. It seems reasonable, therefore, that the law hold her to the choices she made even if those choices result in different consequences from those that she anticipated.4 In the class action context, the client –the class members or at least almost all of them – are not present ; indeed, many class members are never even aware of the existence of the class litigation to which they are, in theory, a party. They are represented only virtually, by means of class representatives. And since class representatives are almost always nominal actors,5 the absent class members are in truth represented only by class counsel, acting, typically, with minimal or no real client input.
      I read an earlier version of the paper, which is highly recommended!
      Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:
        This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio. The patent portfolio theory thus explains what is known as "the patent paradox": in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected value of individual patents has diminished. We find the benefits of patent portfolios to be so significant as to suggest that firms' patenting decisions are essentially unrelated to the expected value of individual patents; because patent portfolios simultaneously increase both the scale and the diversity of available marketplace protections for innovations, firms will typically seek to obtain a large quantity of related patents, rather than evaluating their actual worth. The result—which we find widely recognized in commercial circles—is that the modern patenting environment exhibits (and requires) a high-volume, portfolio-based approach that is at odds with scholars' traditional assumptions. The implications of the patent portfolio theory are important and widespread. First, the explanatory power of the theory allows resolution of not only the patent paradox, but many of the otherwise-puzzling observable patterns in the modern patenting environment—such as firm-size differences in patent intensity and litigation rates. Second, the patent portfolio theory neatly complements the prior theories that have sought to explain modern patent value, strengthening their relationship with the reality of patenting behavior—and confirming that the value of patents has expanded beyond traditionalist notions. Third, the patent portfolio theory allows a number of important predictive insights into future trends in the patent system, allowing policymakers and scholars to frame their inquiry within a range of likely outcomes. In our analysis, the patent portfolio theory does not suggest a better, brighter future for the patent system, but does build a foundation for the important academic and policy-related work that springs from this initial treatment.
    Tuesday, March 29
    Wednesday, March 30
    Thursday, March 31
      St. John’s University Law School: Paul Marcus (William & Mary), “It’s Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions”.
      Fordham University School of Law: Benjamin Zipursky, Professor of Law, Fordham, "Accidents of the Great Society". Here is a taste:
      UCLA Legal Theory Workshop: Deborah Hellman, Professor of Law, University of Maryland School of Law, Its Not the Thought that Counts. Here is a taste:
        In an oft-quoted passage, Justice Holmes asserts that “even a dog distinguishes between being stumbled over and being kicked.” According to Fred Schauer, Holmes overestimates dogs. Perhaps Holmes is wrong about people too. The passage appears to suggest that it is the intention of the actor that matters to the determination of what sort of action takes place. The actor’s intention has the power to transform the action from an instance of kicking to an instance of tripping. And because we assume that kicking is, generally speaking, morally wrong while tripping is, generally speaking, not morally wrong, this transformation is important. But this common understanding of the meaning of that passage may be mistaken. After all, Holmes only needs to bother with the assertion that even a dog can discern the kick from the trip unless it matters what the recipient is likely to take the action to be. The logic of the passage actually works as follows: If even a dog knows the difference, then a fortiori a person can be expected to know as well. Holmes therefore concedes that the way an action is likely to be perceived matters to the determination of what sort of action it is and how we ought to judge that action. The contrary claim –that intention matters – plays a central role in Equal Protection doctrine and commentary. While that doctrine is admittedly complex and contradictory and has generated significant commentary and controversy, nonetheless it is probably fair to say that the intention of the state actor in enacting a law or policy continues to play an important role in the determination of whether that law or policy violates Equal Protection. Moreover, there are two important ways in which intention is taken to matter. First, intention may matter because it is the actor’s intention that determines the nature of the action itself – is it kicking or tripping, for example. Second, intention may matter to the determination of the legal permissibility of the action once defined. In Equal Protection law, is it the thought that counts?
      UC Berkeley, Kadish Center: Dennis Thompson, Alfred North Whitehead Professor of Political Philosophy, Harvard University, Who Should Govern Who Governs. Here is a taste:
        If in a democracy the people have the authority to choose their representatives, then it would seem to follow that they should have the authority to choose the procedures by which they choose their representatives. Yet in nearly all democracies the procedures that govern elections have been established by officials or representatives themselves. Legislatures, courts and commissions rather than popular initiatives or constitutional conventions created and continue to control the electoral process in most democracies. Until recently, attempts to change any electoral system were rare and rarely succeeded. But in the past decade, electoral reform has been gaining a place on the political agenda in many democracies. In the 1990s, many newly emerging democracies designed their own systems, and nine established democracies made far-reaching changes in their existing systems. Although many of these reforms have been carried out by elites, usually in reaction to contingent political circumstances rather than in the service of a plan for improving the system itself, citizens themselves have increasingly demanded, and in some cases won, a significant role in the process of reform. The question of who should choose the electoral system—and more specifically what role citizens should play in that choice—is thus timely. Posing it also creates an opportunity to raise some issues in democratic theory that have been often neglected. In this paper, I construct a theoretical justification for popular participation in the choice of electoral systems, and consider several objections to such participation. To give the objections (and the replies) institutional content, I draw on the experience of a current case— the British Columbia Citizens’ Assembly on Electoral Reform. The institution of the Assembly represents the first time in history (as far as I know) that any democracy has enlisted ordinary citizens in this way to change an electoral system.
      University of Western Ontario Faculty of Law: Conference, Litigating Conspiracy: A Symposium on Competition Class Actions:
        The symposium is about class actions that advance claims for conspiracy, such as price-fixing, bid-rigging and market share manipulation.
      Yale Legal Theory Workshop: Juliet Schor, Boston College (Sociology) (in joint session with the LEO workshop).
      Florida State University School of Law: William Marshall, University of North Carolina School of Law, Presidential Transitions.
    Friday, April 1
      University of Cincinnati Philosophy & Law: Virtue Ethics vs. Kantian Ethics:
        This conference examines virtue ethics, Kantian ethics, their past and present, their differences, and their respective strengths and weaknesses.
      University of Cincinnati School of Law: Lawrence Solum, Virtue Jurisprudence: An Aretaic Theory of Law.
      UCLA School of Law: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Portfolios"


 
Legal Theory Lexicon: Hohfeld
    Introduction You need to know Hohfeld. Why? Because W.N. Hohfeld’s typology of rights from his book Fundamental Legal Conceptions is, well, fundamental. And useful! Let me say this is a more polemic manner: If you don't know Hohfeld, you are out of the loop as a legal theorist!
    Law students encounter the idea of right (moral or legal) early and often. But “rights talk” is frequently “loose talk.” Hohfeld is famous for exposing the ambiguity in the concept of a right and resolving that ambiguity with a typology of rights that distinguishes between claims, liberties, authorities, and immunities. This post is a quick and dirty introduction to Hohfeld for law students (especially first year law students) with an interest in legal theory.
    Types of Rights and Correlative Duties Lawyers tend to mush all legal rights together into a single category. The right to privacy, the right to freedom of speech, property rights, and civil rights—these diverse legal phenomena are frequently treated as if the “right” involved in these diverse cases was a single unambiguous type. Hohfeld’s first contribution was to distinguish different types of rights. Claim rights, for example, create corresponding obligations. Thus, my right to exclusive use of my land entails a corresponding duty of noninterference. You have a duty not to enter upon my land. But my property right also entails my liberty to use my land in a wide variety of ways—to build a house, plant a garden, and so forth. Correlated to that liberty is a correlative absence of inconsistent claim rights. You have no right to prevent me from building a house or planting a garden. Some legal rights involve powers over others. Thus, an employer has a right to control and direct the employee’s actions at work, and parents have authority over their children. Finally, there are immunities from authority. Thus, when children reach the age of majority or are legally emancipated they acquire immunities that disable the authority rights of their parents.
    Implicit in our discussion so far is Hohfeld’s second big idea, which is that each kind of right (claim, liberty, authority, and immunity) has a correlative legal consequence for others. Claim rights have correlative duties. Liberty rights correlate with an absence of claims. Authority rights correlate with liabilities. Immunities correlate with the absence of authority.
    Four Types of Rights The following list enumerates Hohfeld’s basic schema, identifying each kind of right and the correlative legal consequence. P is the party with the right. Q represents the person or group of persons on whom the right has a legal effect. X represents the object of the right.
      Claim Rights
        Rights relation:
          P has a claim against Q to X.
        Correlative relation:
          Q has a duty to P to X.
      Liberty Rights
        Rights relation:
          P has a liberty against Q to X.
        Correlative relation:
          Q has no claim against P to not-X
      Authority Rights:
        Rights relation:
          P has authority over Q to X
        Correlative relation:
          Q has a liability to P to X.
      Immunity Rights
        Rights relation:
          P has an immunity against Q to X.
        Correlative relation:
          Q has a disability (no authority) against P to not-X.
    Moral and Legal Rights Hohfeld was interested in legal rights, but we can extend his scheme to moral rights. Thus, if I have a moral claim right to performance of a promise, you have a corresponding moral duty to perform. Of course, many legal rights are identical to (or substantially the same as) similar moral rights. Contracts, for example, create both moral and legal obligations. Some moral rights, however, may not be reflected in the law. For example, I may have a moral obligation not to discriminate on the basis of race when letting a room in my home, but at the same time have a legal liberty right to engage in such discrimination.
    Conclusion That’s Hohfeld in a very short nutshell!


 
Gerhardt on the Constitutionality of a Judicial Filibuster Over at ACS Blog, there is a post entitled Gerhardt on the "The Constitutionality of the Filibuster", which analyzes a recent piece by Michael Gerhardt in Constitutional Commentary. Here is a taste:
    [T]he filibuster is best understood as a classic example of a non-reviewable, legislative constitutional judgment. It is also a practice that has the same claim to constitutionality as many counter-majoritarian practices within the Senate, including the committee structure and unanimous consent requirements. The Constitution permits all of these practices, though it does not mandate any of them. These practices define the Senate’s uniqueness as a political institution, particularly its historic commitments to various objectives--respecting the equality of its membership and to minority viewpoints; encouraging compromise on especially divisive matters; and facilitating stability, order, and collegiality in the long run. The principal checks on these practices, including the filibuster, are political. They include the Senate Rules, the need to maintain collegiality within the institution, and the political accountability of senators for their support for, or opposition to, filibusters.


 
Jacobs on Life Tenure for Judges Over at Townhall.com, Paul Jacob has an op/ed entitled Benching the judges. Here is taste:
    Calls for a limit on judicial terms are long overdue. One of the best proposals is House Joint Resolution 55, a constitutional amendment introduced by Texas Rep. John Culberson (R-Houston), that would require federal district court judges to be retained every 10 years by both the state legislature and the governor where the judge serves. That strengthens federalism by interconnecting the federal courts with state governments, which are closer to the people. Yet this amendment is going nowhere in Congress. The problem is obvious: we can hardly expect an out-of-control Congress to help us bring the judiciary under control. Instead, in keeping with Alexis de Tocqueville's view of the states as "laboratories of democracy," bringing the judiciary under control must start closer to home. State judges have exhibited similarly bad behavior and, through the initiative process and more accessible legislators and elections, voters can do something about it.
In the piece, Jacob quotes me as follows:
    "The way we got into this mess begins with a judiciary that is already politicized," University of San Diego law professor Lawrence B. Solum says. "Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized."
The quote is accurate, but a bit out of context--especially when used to support an end to lifetime tenure. Here is the conclusion of the paragraph:
    If I am given the Hobson's choice--politicized judging with life tenure or politicized judging without life tenure--the choice is painful but clear. The point of the thought experiment is that we should avoid the Hobson's choice. How can we avoid it? Compromise. Both parties should agree on two principles of judicial selection. Principle One: judges should be selected on the basis of their possession of the judicial virtues, and especially the virtue of justice--fidelity to the rule of law. Principle Two: each party should agree to allow the nominees of the other party to come to a floor vote, and Senators should vote to confirm--unless there is good evidence that the nominee lacks the constituent elements of good judicial character. The possible world of Article III without Life Tenure is not the only ending point for the downward spiral of politicization, but contemplating this possibility can and should serve a salutary purpose. It is in the long run interest of both political parties to call off the confirmation wars. The time for escalation should end, and the time for compromise should begin.
My original post, quoted by Jacob, was Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.


Saturday, March 26, 2005
 
Saturday Calendar
    Florida State University: Conference, Default Rules in Private and Public Law. Continues today. Keynote speaker: Eric Maskin—Princeton. Other participants include Ian Ayres (Yale), Robert Ahdieh (Emory), Scott Baker & Kim Krawiec (University of North Carolina), Oren Bar-Gil (Harvard), Omri Ben-Shahar (Michigan), Margaret Brinig (Iowa), Daniel Farber (Berkeley), John Ferejohn (Stanford), Tamar Frankel (Boston University), Bradley C. Karkkainen (Minnesota), Jody Kraus (Virginia), Eric Posner (Chicago), Alan Schwartz (Yale), Robert Scott (Virginia), Eric Talley (University of Southern California). Participating Florida State University faculty include Amitai Aviram, Curtis Bridgeman, Mary Crossley, Adam Hirsch, Jonathan Klick, Jim Rossi, J.B. Ruhl, John Scholz, and Mark Seidenfeld.


 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Law as It Could Be by Owen Fiss. Here is a brief description:
    The Law As It Could Be gathers Fiss's most important work on procedure, adjudication and public reason, introduced by the author and including contextual introductions for each piece—some of which are among the most cited in Twentieth Century legal studies. Fiss surveys the legal terrain between the landmark cases of Brown v. Board of Education and Bush v. Gore to reclaim the legal legacy of the Civil Rights Movement. He argues forcefully for a vision of judges as instruments of public reason and of the courts as a means of shaping society in the image of the Constitution. In building his argument, Fiss attends to topics as diverse as the use of the injunction to restructure social institutions; how law and economics have misunderstood the role of the judge; why the movement seeking alternatives to adjudication fails to serve the public interest; and why Bush v. Gore was not the constitutional crisis some would have us believe. In so doing, Fiss reveals a vision of adjudication that vindicates the public reason on which Brown v. Board of Education was founded.
And follow this link for a review.


 
Download of the Week The Download of the Week is Analytical Jurisprudence versus Descriptive Sociology Revisited by Nicola Lacey. Here is a taste:
    In this essay, I want to revisit the protracted, inconclusive and sometimes unedifying debate prompted by Hart’s famous claim in the Preface to The Concept of Law that the book might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Drawing on my work on Hart’s biography, I shall review his own reflections on the claim, the arguments in legal theory to which his claim gave rise, and the reasons for thinking that the structure of his own theory prevented him from following through on the insights from which his claim proceeded. My motivation is not, however, primarily that of the biographer or intellectual historian. Rather, this general interpretive question about Hart connects with some long-standing interests which have informed my own work in jurisprudence and criminal law theory. So, while bearing in mind Freud’s view of the biographer’s relationship with his or her subject as ‘a heady brew of Oedipal triumph and sibling rivalry’(!), I shall use my engagement with Hart’s biography and intellectual legacy as the jumping off point for a further examination of the relationship between what have come to be called ‘internal’ and ‘external’ approaches to legal theory, and about the relative contributions of philosophy, history and the social sciences to our systematic understanding of the nature of law. Are legal philosophers justified in regarding sociological legal theorists as playing an entirely different game or, to put the question in Kornhauser’s terms, does it make sense to seek a theory of the ‘legal order’ independent of a theory of the ‘legal regime’? My argument will proceed in three stages. First, I shall examine Hart’s original claim, interpreting it in the light of the archival materials – particularly Hart’s working notebooks – which were available to me as his biographer. I shall then consider the role of this dual ambition in Hart’s later development of his own theory of law. In this section I shall argue that structural features of Hart’s theory, as well as his insistence on the primacy (or even on the exclusive relevance) of philosophical method to jurisprudence, prevented him from building on his original insight that a theory of law might be taken as a genuine contribution to sociology. Ironically, Hart’s emphatic recapitulation of the essentially descriptive nature of his legal theory in the posthumously published Postscript took him, if anything, further from his original insight, and underlines the rather limited extent to which his theory built up its promise of a social or institutional theory capable of illuminating the ways in which the conception of law reflected in usage ‘depend[s] on social context’. Yet, after decades of a mutual lack of interest (tinged on both sides with a whiff of contempt), the productive dialogue between philosophical and socio-legal theory glimpsed in the Preface has, I shall argue, now begun to flourish. Today, Hart’s original insight is more widely appreciated, perhaps as a result of the increasingly stark contrast between his style of legal philosophy and the more abstract and technical style of some of his positivist successors. In the second section of the paper, I shall consider the relationship between Hart’s idea that legal theory had to do with both analytical jurisprudence and descriptive sociology and what might be called the project of ‘special’ as opposed to ‘general’ jurisprudence. The revival of a philosophically sophisticated special jurisprudence – a mode of conceptual analysis very different from the arid jurisprudential pondering on concepts such as ownership and possession which he skillfully lampooned in ‘Definition and Theory in Jurisprudence’ – is generally considered to be one of Hart’s most important long-term contributions to the field. And while it is most often associated with his normative work – notably Punishment and Responsibility – the vast monument of Causation in the Law, as well as the interplay of the normative and the analytic in this aspect of Hart’s work, testify to the relevance of this special jurisprudence to his analytical project. In suggesting that here, too, there was an implicit (and incompletely realised) social dimension to Hart’s work, I am moving beyond any claim of his own. But I shall argue that the claim in the Preface is of great relevance to his analysis of legal concepts such as causation, intention or negligence, and of higher level concepts such as responsibility which he argued to underpin these legal concepts. Indeed, I shall suggest that it may be easier to get a clear view of the mutual dependence of analytic/conceptual and social/institutional aspects of legal theory through a discussion of ‘micro’ than of ‘macro’ legal theory. In the final section of the paper, I shall develop the argument of the second section through three case studies within special jurisprudence, each of them the subject of Hart’s work. First, I shall consider the idea of causation in legal discourse; second, the idea of responsibility in criminal law; and finally the idea of corporate personality and responsibility. Through the case studies, I shall argue that a full understanding of legal concepts (and, by extension, legal rules, principles, doctrines) can only be attained by supplementing philosophical analysis with a study of the social institutions and contexts in which those concepts, rules and arrangements are embedded. Accordingly, my argument will be that if legal theorists want to escape the sort of isolation or irrelevance risked by a view of jurisprudence as autonomous, we had better abandon Hart’s insistence that philosophy is its exclusive disciplinary resource. In conclusion, I shall suggest that a view of ‘internal’ and ‘external’ jurisprudence as mutually dependent would be more intellectually satisfactory than the philosophical imperialism which currently characterises the field.
Lacey just gave this paper as the Annual Leon Green '15 Lecture in Jurisprudence--in connection with Texas's excellent law and philosophy program. I just finished reading this paper again. (I'd seen an earlier version.) Highly recommended! Download it while its hot!


Friday, March 25, 2005
 
Brown on Representation and Accuracy in Criminal Adjudication Darryl K. Brown (Washington and Lee University - School of Law) has posted The Decline of Defense Counsel and the Rise of Accuracy In Criminal Adjudication on SSRN. Here is the abstract:
    With respect to truth-finding, American criminal procedure governs adjudication in considerable detail but investigation relatively little. Strong regulation of adjudication, in theory, maximizes accuracy despite weak investigative regulation because adjudication checks investigation. Yet adjudication - which occurs through bargaining much more often than trials - is a weak guarantor of accuracy for many reasons, one of which is the systemic weakening of adversarial process achieved by legislative under-funding of indigent defense. Despite these weaknesses, new means to improve fact-finding in criminal justice - most prominently, DNA analysis - recently have made accuracy a higher priority by making errors harder to conceal. We now see early signs of a new model for criminal justice, a system that depends less on adversarial process and more on practices that look familiar to administrative and inquisitorial settings. This shift holds much promise. The accuracy-enhancing function of defense attorneys - scrutinizing the reliability of state evidence and presenting evidence the state ignored - can be in significant ways supplanted by other mechanisms, many of which are more politically sustainable. The emerging practices diminish adjudication's role and moderate its adversarial features. New investigation-stage practices take the place of weak incentives arising from trials and bargaining. Executive and judicial actors are beginning to supplement weak defense counsel in aiding accuracy, and they have some advantages over adversarial lawyering. Adjudication is becoming a relatively less important procedural stage for truth finding as investigation becomes more so. Adjudication is weaker than we thought, but investigation is, in some compensatory ways, growing stronger as it also grows less adversarial.


 
SSRN Top 1,000 Law Authors Follow this link (registration required), for SSRN's ranking of authors from the legal academy by recent downloads. Number one is Lucian Bebchuk of Harvard.


 
Friday Calendar
    University of Texas Law & Philosophy Program: Nicola Lacey (Law, London School of Economics and Australian National University), Annual Leon Green '15 Lecture in Jurisprudence. Here is a link to her paper.
    Florida State University: Conference, Default Rules in Private and Public Law. Keynote speaker: Eric Maskin—Princeton. Other participants include Ian Ayres (Yale), Robert Ahdieh (Emory), Scott Baker & Kim Krawiec (University of North Carolina), Oren Bar-Gil (Harvard), Omri Ben-Shahar (Michigan), Margaret Brinig (Iowa), Daniel Farber (Berkeley), John Ferejohn (Stanford), Tamar Frankel (Boston University), Bradley C. Karkkainen (Minnesota), Jody Kraus (Virginia), Eric Posner (Chicago), Alan Schwartz (Yale), Robert Scott (Virginia), Eric Talley (University of Southern California). Participating Florida State University faculty include Amitai Aviram, Curtis Bridgeman, Mary Crossley, Adam Hirsch, Jonathan Klick, Jim Rossi, J.B. Ruhl, John Scholz, and Mark Seidenfeld.


 
Fellowship Announcement
    2005 OLIVE W. GARVEY FELLOWSHIPS COMPETITION Top Essays To Be Awarded $2,500 (College Students) or $10,000 (Untenured Professors) http://www.independent.org/students/garvey/ The Independent Institute is pleased to announce the 2005 Olive W. Garvey Fellowship Competition. Cash prizes will be awarded to outstanding college students -- and untenured "junior" faculty -- from around the world through a competitive essay contest. Held biennially, the Garvey Fellowship is intended to encourage and reward scholarship pertaining to the meaning and significance of economic and personal liberties. The specific essay topic changes with each contest. This essay topic for 2005 Garvey Competition is taken from a quotation by Nobel-laureate economist and social philosopher Friedrich A. Hayek (1899-1992): "The great aim of the struggle for liberty has been equality before the law." A panel of three judges will look for the best essays related to Hayek's quotation -- original essays distinguished by their clarity, rigor, and eloquence. The essays need not be technical or demonstrate hyper-specialized scholarship, although they should be serious in content, tone, and style. Founded in 1974, the Garvey Fellowship has attracted thousands of young scholars, many of whom have subsequently become noted academicians, journalists, and business leaders. Beginning in 2003, the Garvey Fellowships also offers awards in a separate category for junior faculty members (untenured). STUDENT DIVISION: College students up to the age of 35: First Prize: $2,500 Second Prize: $1,500 Third prize: $1,000 FACULTY DIVISION: Junior faculty members up to the age of 35 and not yet tenured: First Prize: $10,000 Second Prize: $5,000 Third Prize: $1,500 ELIGIBILITY: Student Division: Any student 35 years or younger enrolled at a recognized college or university anywhere in the world. Junior Faculty Division: Untenured college or university teachers, Assistant Professor or higher, 35 years or younger. LENGTH (double-spaced typescript): Student essays must not exceed 3,000 words. Teacher essays must be 5,000 to 8,000 words long. DEADLINE: May 1, 2005


 
Wendel on Legal Ethics & the Separation Thesis W. Bradley Wendel (Cornell Law School) has posted Legal Ethics and the Separation of Law and Morals on SSRN. Here is the abstract:
    This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity. The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.


 
Dent on Racial Trust George W. Dent, Jr. (Case Western Reserve Law School) has posted Race, Trust, Altruism and Reciprocity (Richmond Law Review, Vol. 39, May 2005) on SSRN. Here is the abstract:
    Trust, altruism and reciprocity are attracting growing attention from scholars. Interest began with psychological experiments showing that people often are altruistic, trust others, and reciprocate the benevolence of others far more than economic models of "rational" human selfishness predict. These findings inspired social scientists to discover what factors promote or hinder cooperation. Legal scholars have employed this learning to determine how the law does or could facilitate or discourage cooperation in many contexts, including business transactions and the workplace. The influence of race on cooperation has been studied in specific areas, but so far no one has considered how the new learning might improve race relations and racial equality. This article makes an initial effort to do so. Trust in others is essential to human interaction, especially in dealings too complex for the parties’ rights and duties to be detailed in writing. Trust grows when each side's contribution is reciprocated by the other's, but not if reciprocity is withheld, and trust shrinks rapidly if one party abuses the other's trust by acting opportunistically. People often eschew gain and help the needy, but altruism also dwindles if the recipients do not seem truly needy, or do not try to help themselves, or if others who could help refuse to do so and "free ride" on those who are altruistic. The dearth of racial trust in America is dramatically manifested in the separation so often chosen by both blacks and whites. Distrust blocks cooperation and altruism between the races and obstructs efforts to solve virtually every social problem. Part I of this article reviews the learning about trust, altruism and reciprocity. Part II applies this knowledge to better understand racial division and inequality in America and why many policies and positions do not ameliorate these ills and indeed may exacerbate them. Part III discusses our goals in race relations. Part IV prescribes principles to foster interracial trust. Part V proposes some specific steps to reduce racial inequality while building trust.


Thursday, March 24, 2005
 
Thursday Calendar: Updated
    Princeton University, James Madison Program in American Ideals and Institutions: Randy Barnett, Restoring the Lost Constitution.
    University of Pennsylvania Legal Theory Workshop: Professor Edna Ullman-Margolit, Hebrew University.
    Yale Legal Theory Workshop: Amartya Sen, Harvard University (in joint session with the LEO workshop and Schell Center) "What's the Point of Human Rights?"
    Boston University School of Law: Wendy Gordon.
    Florida State University Law: Jody Kraus, University of Virginia.
    George Mason School of Law: Ross Davies, GMU School of Law, Modest Justice.
    George Washington University IP Series: Sara K. Stadler, Emory University Law School, "How Copyright Is Like a Moebius Strip".
    University of Michigan Cyberlaw & Economics Workshop: Christopher Yoo, Vanderbilt, On the Regulation of Networks as a Complex System.
    University of Texas Constitutional & Legal Theory Colloquium: Nicola Lacey, London School of Economics & Political Science.


 
The Economist on the Grokster Case Check out Grokster and StreamCast face the music over at Economist.com. Here is a taste:
    The music business should have stuck by Thomas Edison’s technology if it wanted to avoid the threat of piracy. His wax cylinders could record a performance but could not be reproduced; that became possible only with the invention of the flat-disc record some years later. On Tuesday March 29th, America’s Supreme Court will begin to hear testimony in a case brought by the big entertainment companies that is intended to stop the illegal downloading of copyright-protected music and film. The industry’s target is the peer-to-peer (P2P) technology that allows the swapping of files directly over the internet. The defendants in the case are two firms that make file-sharing software: StreamCast Networks and Grokster.