Legal Theory Blog

All the theory that fits!


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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Saturday, July 30, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends The Puzzle of Judicial Behavior by Lawrence Baum. Here is a blurb:
    From local trial courts to the United States Supreme Court, judges' decisions affect the fates of individual litigants and the fate of the nation as a whole. Scholars have long discussed and debated explanations of judicial behavior. This book examines the major issues in the debates over how best to understand judicial behavior and assesses what we actually know about how judges decide cases. It concludes that we are far from understanding why judges choose the positions they take in court. Lawrence Baum considers three issues in examining judicial behavior. First, the author considers the balance between the judges' interest in the outcome of particular cases and their interest in other goals such as personal popularity and lighter workloads. Second, Baum considers the relative importance of good law and good policy as bases for judges' choices. Finally Baum looks at the extent to which judges act strategically, choosing their own positions after taking into account the positions that their fellow judges and other policy makers might adopt. Baum argues that the evidence on each of these issues is inconclusive and that there remains considerable room for debate about the sources of judges' decisions. Baum concludes that this lack of resolution is not the result of weaknesses in the scholarship but from the difficulty in explaining human behavior. He makes a plea for diversity in research. This book will be of interest to political scientists and scholars in law and courts as well as attorneys who are interested in understanding judges as decision makers and who want to understand what we can learn from scholarly research about judicial behavior.

Download of the Week The Download of the Week is Exclusionary Amenities in Residential Communities by Lior Strahilevitz. Here is the abstract:
    This essay identifies an important mechanism by which segregation arises in new residential developments. The Fair Housing Act and other antidiscrimination laws closely regulate real estate sales, advertising, and "racial steering." As a result of these laws and other factors, purchasers of homes often lack accurate information about the likely demographic makeup of a new neighborhood or condominium building. Yet these laws have not eroded the incentives for housing consumers to obtain this data. This essay argues that developers can circumvent fair housing laws by embedding costly, demographically polarizing amenities within a new development and recording covenants mandating that all homeowners pay for those amenities. Its central claim is that developers will select common amenities not only on the basis of which amenities are inherently welfare-maximizing for the residents, but also on the basis of which amenities most effectively deter "undesirable" residents from purchasing homes in the development. The essay dubs this approach the "exclusionary amenities strategy" and shows how it causes sorting and focal point mechanisms to act in concert, thereby engendering substantial residential homogeneity. The inability to exclude functions as an inducement to spend. During the 1990s, the United States experienced a boom in the construction of residential developments built around costly golf courses. This occurred at a time when golf participation functioned as a noticeably better proxy for race than income, wealth, or virtually any other characteristic. Curiously, substantial numbers of Americans who purchased homes in mandatory-membership golf communities played no golf. This essay offers circumstantial evidence suggesting that by purchasing homes in these communities, homeowners may simply have been paying a premium for residential racial homogeneity. They essay then identifies a number of other examples where developers, or even municipalities, appear to be pursuing an exclusionary amenities strategy. It also identifies instances in which the use of exclusionary amenities may further neutral, or even laudable, objectives. The essay then notes the possibility of inclusionary amenities, and shows how a few developers, common interest communities, and municipalities have used these amenities to achieve greater residential heterogeneity than would otherwise have been possible. It concludes by evaluating the law's current stance of leaving exclusionary amenities largely unregulated, and examines various strategies for curbing the use of exclusionary amenities to achieve racial homogeneity.

Friday, July 29, 2005
Andrus on Wikis, Blogs, and Intelligence D. Calvin Andrus (Central Intelligence Agency) has posted The Wiki and the Blog: Toward a Complex Adaptive Intelligence Community on SSRN. Here is the abstract:
    US policy-makers, war-fighters, and law-enforcers now operate in a real-time worldwide decision and implementation environment. The rapidly changing circumstances in which they operate take on lives of their own, which are difficult or impossible to anticipate or predict. The only way to meet the continuously unpredictable challenges ahead of us is to match them with continuously unpredictable changes of our own. We must transform the Intelligence Community into a community that dynamically reinvents itself by continuously learning and adapting as the national security environment changes. Recent theoretical developments in the philosophy of science that matured in the 1990's, collectively known as Complexity Theory, suggest changes the community should make to meet this challenge. These changes include allowing our officers more autonomy in the context of improved tradecraft and information sharing. In addition, several new technologies will facilitate this transformation. Two examples are self-organizing knowledge websites, known as Wikis, and information sharing websites known as Blogs. Allowing Intelligence Officers and our non-intelligence National Security colleagues access to these technologies on SIPRNet, will provide a critical mass to begin the transformation.

Baron on Baker v. State Charles Hillel Baron (Boston College - Law School) has posted Baker v. State and the Promise of the New Judicial Federalism (Boston College Law Review, Vol. 43, pp. 125-158, 2001) on SSRN. Here is the abstract:
    In Baker v. State, the Supreme Court of Vermont ruled that the state constitution's Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores the ways the Vermont justices employed doctrinal threads from these authorities, analyzes and critiques perceived shortcomings in the reasoning of each opinion, and then addresses the important contribution that independent state constitutional jurisprudence can make to constitutional discourse. The Article further encourages law schools to implement curricular changes that will expose students to state constitutional law.

Langer on Managerial Juding in International Criminal Courts Maximo Langer (University of California, Los Angeles - School of Law) has posted The Rise of Managerial Judging in International Criminal Law (American Journal of Comparative Law, Vol. 53, January 2006) on SSRN. Here is the abstract:
    What do the procedure of the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY or the Tribunal) and U.S. civil procedure have in common? Dissected with theoretical tools from comparative law, these two types of procedure reveal similar skeletons. In each, judges abandoned their roles as uninformed, passive umpires to become active managers and mediators of cases with the goal of expediting the docket. Understanding this change enables us to escape from sterile debates about the triumph or defeat of adversarial or inquisitorial models. Instead, we can focus on what really matters: 1) how elements of a procedural system relate to each other; 2) how legal culture impacts procedure, and 3) how procedural systems change over time. As its main claim, this article demonstrates that the managerial judging system explains the current procedure of this international tribunal. Scholars articulated this system in order to describe similar developments in U.S. civil procedure. The managerial judging system conceives procedure as a device that the court, with the parties’ assistance, wields to expedite process. Unlike the passive and uninformed court of the adversarial system, the managerial court gets information about the case very early in the process in order to actively pressure the parties to reach factual and legal agreements and accelerate their pre-trial investigations and trial cases. But unlike the court of the inquisitorial system that actively investigates the truth, the managerial court is active to make sure that the parties do not delay proceedings. In order to explain how ICTY procedure has adopted a managerial judging system, this article starts by describing the adversarial and inquisitorial systems of common and civil law. Legal actors brought to the Tribunal the cultural conceptions of criminal procedure prevailing in their domestic jurisdictions. The initial predominance of common law actors partly explains why ICTY originally adopted an adversarial system. Practical needs of the Tribunal to expedite the docket - rather than the predominance of common or civil law actors - have driven the later move of the Tribunal from the adversarial to the managerial judging model. By explaining how the managerial judging model best captures the current procedure of ICTY, this article puts this procedure in a completely new light. Up to now, there have been two competing characterizations of ICTY procedure, both unsatisfactory. The first views ICTY's procedure as sui generis, without parallel in any national jurisdiction. This article will challenge this characterization by showing that the managerial judging system typifies both U.S. civil procedure and ICTY criminal procedure. According to the second position, ICTY's procedure is a hybrid between adversarial and inquisitorial conceptions of the criminal process. One problem with this position is that there are many potential hybrids or combinations between the adversarial and inquisitorial systems. If our analysis stops here - as other commentators' analyses have - then merely characterizing a procedure as a hybrid between the adversarial and inquisitorial systems tells us little about it. By offering the managerial judging system as the best description of ICTY procedure, this article aims to correct that shortcoming.

Lenard & Rubin on Data Security-Breach Notification Requirements Thomas M. Lenard and Paul H. Rubin (Progress & Freedom Foundation - General and Emory University School of Law) have posted An Economic Analysis of Notification Requirements for Data Security Breaches on SSRN. Here is the abstract:
    In this paper, we examine the costs and benefits of laws requiring businesses to notify consumers if their private data is compromised, such as the law in California and other state and federal laws recently passed or proposed. Identity theft and related frauds do not seem to be increasing in recent years, and may be decreasing. A 2004 Survey finds virtually identical results to a survey in 2003, and industry reports find no increase. This may be because credit card companies have increasingly sophisticated detection methods to prevent fraud. In addition, there are strong industry incentives to maintain security. Firms bear almost all of the cost of fraud, and firms suffering such fraud exhibit large stock losses in event studies. The cost to individuals of all sorts of identity theft, weighted by frequency and adjusting for time costs, are about $1000 for actual victims. Most identity theft (at least 70%) is based on data obtained offline, not online. The probability of a victim whose data is compromised actually being victimized is about 2%, so the maximum savings from notice is only $20. For various reasons (including time to receive notice and likely action if notice is received) the actual benefits are more likely to be about $10. The costs of notice include actions such as fraud alerts which consumers may take which are likely to be more costly than the benefits. New credit cards cost between $10 and $20. Even though online commerce is safer than offline commerce, consumers receiving notice may decide to do business offline, thus increasing their risk. Firms may also react strongly to minimize reputation losses; this may have perverse effects, as when it becomes more expensive for new businesses to obtain data about potential customers. Thus, any laws mandating notice should be limited. Finally, state laws that have already passed differ in significant ways, but since this is at least a national market, notice will probably be the same in all states. This means that the most restrictive set of state laws will overall govern in all states. This is an argument for federal preemption in this issue.

Goodrich Goes Postal Peter Goodrich (Yeshiva University - Cardozo Law School) has posted The Posthumous Life of the Postal Rule Requiem and Revival of Adams v. Lindsell (FEMINIST PERSPECTIVES ON CONTRACT LAW, London: Glasshouse Press, 2005) on SSRN. Here is the abstract:
    This article authoritatively resolves the mystery of the mailbox rule. Using historical sources from several jurisdictions the author argues that the origin of the postal rule derives from early cases of breach of promise to marry. The offeree was favored and protected because the offeree was a woman. When the roots of the doctrine were lost, the principle that the fiction expressed was also forgotten. The future of assumptions relating to the time of formation of agreement are then reviewed.

Klick & Stratman on Senior Prescription-Drug Price Sensitivity Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted How Sensitive Are Seniors to the Price of Prescription Drugs? on SSRN. Here is the abstract:
    This study estimates the demand curve for prescription drugs among elderly Medicare beneficiaries. In contrast to previous work, the current analysis uses a measure of price rather than insurance status as the key explanatory variable to test for seniors' sensitivity to prescription drug price changes. The estimates show that a one percentage point increase in the coinsurance rate implies a 1.01 percent decrease in the number of prescriptions filled and a 0.69 percent decrease in total drug expenditures. This finding indicates that seniors are far more responsive to prescription drug price changes than suggested by studies that examine younger individuals or those that do not control for self-selection into supplemental insurance plans.

Thursday, July 28, 2005
Bartow on Women & Secondary Copyright Liability Ann Bartow (University of South Carolina - School of Law) has posted Women in the Web of Secondary Copyright Liability and Internet Filtering. Here is the abstract:
    This Essay suggests possible explanations for why there is not very much legal scholarship devoted to gender issues on the Internet; and it asserts that there is a powerful need for Internet legal theorists and activists to pay substantially more attention to the gender-based differences in communicative style and substance that have been imported from real space to cyberspace. Information portals, such as libraries and web logs, are "gendered" in ways that may not be facially apparent. Women are creating and experiencing social solidarity online in ways that male scholars and commentators do not seem to either recognize or deem important. Internet specific content restrictions for the purposes of "protecting copyrights" and "protecting children" jeopardize online freedoms for women in diverse ways, and sometimes for different reasons than they do for men. Disparities in the ways women and men use, experience and communicate over the Internet need to be recognized, studied, and accommodated by those who would theorize cyberspace law and advocate directions for its evolution.
I always learn from Bartow's work.

Goodrich on Satirical Legal Studies Peter Goodrich (Yeshiva University - Cardozo Law School) has posted Satirical Legal Studies: From the Legists to the Lizard (Michigan Law Review, Vol. 103, p. 307, 2004) on SSRN. Here is the abstract:
    This comprehensive and witty study invents the category of satirical legal studies and traces it from the medieval legists to the contemporary lucubrations of legal scholars. Irreverent, scholarly, irascible and irrefragable this article wields an unparalleled panoply of sources and doctrines to prove that satirical legal studies represents the most persuasive form of jurisprudential analysis.

Klick & Stratmann on Diabetes Treatment & Moral Hazard Jonathan Klick and Thomas Stratmann (Florida State University College of Law and George Mason University, Buchanan Center Political Economy) have posted Diabetes Treatments and Moral Hazard on SSRN. Here is the abstract:
    In the face of rising diabetes rates, many states passed laws requiring health insurance plans to cover medical treatments for the disease. Although supporters of the mandates expect them to improve the health of diabetics, they have the potential to generate a moral hazard to the extent that medical treatments might displace individual behavioral improvements. Another possibility is that the mandates do little to improve insurance coverage for most individuals, as previous research on benefit mandates has suggested that often mandates duplicate what plans already cover. To examine the effects of these mandates, we employ a triple differences methodology comparing the change in the gap in body mass index (BMI) between diabetics and non-diabetics in mandate and non-mandate states. We find that mandates do generate a moral hazard problem with diabetics exhibiting higher BMIs after the adoption of these mandates.

Lee on a European SEC Ruben Lee (Oxford Finance Group) has posted Politics and the Creation of a European SEC: The Optimal UK Strategy - Constructive Inconsistency on SSRN. Here is the abstract:
    This paper analyses the factors influencing whether a European Securities and Exchange Commission (ESEC) will be created and confirms the primary role that politics will play in its establishment. In the face of growing support for an ESEC, the paper recommends a strategy the UK should adopt towards the creation of such an institution. It is proposed that the UK adopt a three-pronged approach. First, the UK must, as it currently does, support the Lamfalussy Process in the hope that it works. Second, the UK must determine what criteria need to be assessed in order to evaluate whether the Lamfalussy Process together with the Financial Services Action Plan are in fact harming UK interests, and then make such an evaluation. Finally, if political support for an ESEC becomes unstoppable, the UK should negotiate for the creation of an appropriately structured ESEC - even though its backing for the Lamfalussy Process should logically preclude its support for any type of ESEC. A key attribute of the recommended strategy is thus that it is inconsistent. This is not, however, thought a problem. On the contrary, given that the creation of an ESEC is the stuff of politics and thus that a political response is called for, and given that other key participants’ policies on the creation of an ESEC are themselves inconsistent, the strategy proposed is argued as being not only constructive, but indeed rational.

Call for Papers:
    Call for Papers Practical Reason and Moral Motivation Helsinki Research Project in Theoretical Ethics Workshop on Moral Judgment and Moral Psychology Helsinki, Finland, December 13th-14th, 2005 Invited speakers:
      Simon Blackburn (University of Cambridge) Jonathan Dancy (The University of Reading and The University of Texas at Austin)
    Questions about the nature of moral judgment have always been at the center of metaethical debates between various cognitivist and non-cognitivist theories. While much of the classic debate turned on the status of moral judgments as linguistic expressions – are they truth-apt and perhaps literally true, or not? Are there corresponding facts in the world? – in recent years the popularity of minimalism about truth and facts has threatened to trivialize the issue. Perhaps because of that, it has become common to focus on the psychological states that those utterances express. The basic questions then become: Do moral judgments in this psychological sense consist in beliefs, desires, or perhaps some more complex attitudes? How do they hook up to motivation and action? This new focus has led to the development of sophisticated theories of the psychological role of moral judgment (and its close cousin reasons judgment). We look forward to reading quality papers on issues including but not limited to the following:
      How do moral utterances convey the psychological states they express – as a matter of their truth conditions, by means of conversational or conventional implicature, or some other means?
      Whether moral judgments consist in cognitive or non-cognitive states, what is the content of those states?
      What explains their connection to motivation?
      What is the essential difference between beliefs and desires?
      Are moral judgments judgments about reasons?
      What is it to act on reasons?
      How do reasons function in the explanation of action?
      What is the relationship between reasons and rationality?
      What kind of authority do moral and reasons judgments have for the agent and why?
      Does rationality demand that one is motivated accordingly? What is the relationship vbetween autonomy and acting on such judgments?
      Is the focus on the psychological a good way to put the basic questions of metaethics? Can it shed new light on classic problems, such as the Frege-Geach challenge and the alleged queerness of moral properties?
    Papers should be between 3000 and 4000 words in length. Since this is a workshop, we put special emphasis on new ideas and new developments of old themes in the selection process. Graduate students are encouraged to submit. Each paper will be allotted a full hour to provide ample time for comments and discussion. Drafts of papers with all identifying information on a separate cover sheet should be submitted no later than September 15th 2005 to Antti Kauppinen( PDF, Word and RTF formats are preferred. Those who wish to submit a hard copy instead (though we recommend electronic submission) can mail their paper and cover sheet to Antti Kauppinen, Department of Social and Moral Philosophy, P.O. Box 9, 00014 University of Helsinki, Finland. We aim to announce the list of accepted papers within two weeks of the deadline. The final conference program will be posted by mid-October on our website The workshop is organized by the Academy of Finland research project Practical Reason and Moral Motivation, directed by professor Timo Airaksinen.

Conference Announcement: Pain and Death: Politics, Aesthetics and Legalities at Canberra
    Pain and Death: Politics, Aesthetics and Legalities 8-10 December 2005 Canberra, Australia A conference and associated exhibits and performances, Centre for Cross-cultural Research, The Australian National University, Convener: Carolyn Strange The so-called war on terror and its representations have ignited interest in pain and death across a wide range of disciplines, including criminology, political science, law, history, literature, sociology, anthropology, cultural studies, psychology, linguistics, journalism and philosophy. At the same time artists working in the visual arts, as well as music, poetry, dance, and theatre have taken up the issue of state violence with renewed vigour. Fertile dialogue among and between artists, activists and scholars is the aim of this gathering. State-inflicted and state-sanctioned violence involves practices that are justified and contested on legal and political grounds. Yet it also raises a question of aesthetics: how/can officially-authorized violence be represented? Scholars, artists and activists working on the politics and legalities of state violence, and those exploring and producing representations of officially-sanctioned pain and death are invited to submit an abstract. Confirmed Keynote Performers: Owens Wiwa, human rights activist; Javier Moscoso, philosopher; Jonathan Lamb, literary scholar Invited Speakers: Joanna Bourke, Hilary Charlesworth, Betty Churcher, Costas Douzinas, Mark Finnane INSTRUCTIONS FOR ABSTRACT SUBMISSION: Please submit an abstract of no more than 300 words, outlining your proposed topic, your approach, and the forms/media in which you intend to present your work. Include a brief (two-page) c.v., outlining your affiliation and your key publications, exhibits, and/or performances. Send your abstract (preferably in WORD or PDF) to: Or mail it to: Carolyn Strange, Centre for Cross-cultural Research, Australian National University, Canberra, ACT, Australia, 0200 ABSTRACT SUBMISSION DEADLINE: 1 August 2005 FOR MORE INFORMATION:

Wednesday, July 27, 2005
Romana on Sarbox Roberta Romano (Yale Law School) has posted The Sarbanes-Oxley Act and the Making of Quack Corporate Governance (Yale Law Journal, June 2005) on SSRN. Here is the abstract:
    This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical literature provides a metric for evaluating whether specific provisions can be most accurately characterized as efficacious reforms or as quack corporate governance. The learning of the literature, much of which was available when Congress was debating the bill, is that SOX's corporate governance provisions were ill conceived. The political environment explains why Congress would enact legislation with such mismatched means and ends. SOX was enacted as emergency legislation amid a free-falling stock market and media frenzy over corporate scandals shortly before midterm congressional elections. The governance provisions, introduced toward the end of the legislative process in the Senate, were not a focus of any considered attention. Their inclusion stemmed from the interaction between election-year politics and the Senate Banking Committee chairman's response to the suggestions of policy entrepreneurs. The scholarly literature at odds with those individuals' recommendations was not brought to Congress's attention (and was ignored on the rare occasions that it was referenced). The pattern of congressional decisionmaking in SOX is not, however, unique. Much of the expansion of federal regulation of financial markets has occurred after significant market turmoil. The Article concludes that SOX's corporate governance provisions should be stripped of their mandatory force and rendered optional. To mitigate future policy blunders on the scale of SOX, it also suggests that emergency or crisis-mode legislation provide for reevaluation at a later date when more deliberative reflection is possible.

Baron on Law & Literature Jane B. Baron (Temple University School of Law) has posted The Rhetoric of Law and Literature (Cardozo Law Review, Vol. 26, p. 2273, 2005) on SSRN. Here is the abstract:
    This short piece, prepared for a symposium revisiting Richard Weisberg's 'The Failure of the Word', focuses on the structure of claims that are often made about law's relationship to literature. These claims purport to contrast literature, portrayed as textured, nuanced, and emotionally resonant, with law, portrayed as a dessicated, abstract world composed mainly of rules. Rhetorically, this contrast constructs and entrenches a highly contestable definition of law's boundaries even as it purports to describe them. Worse, by assuming that law is an independent space mostly bounded by rules, and that literature is a separate and contrasting space, the strategy suggests a rather impoverished view of interdisciplinarity. In this view, interdisciplinary work is work that crosses borders; if what is inside the realm of literature were already inside law, there would be nothing interdisciplinarity could accomplish. Although Weisberg inverts the usual rhetoric of opposition, and instead draws parallels between law and literature, his work is nonetheless reminiscent of that part of law/literature rhetoric that associates almost everything worth having - emotions, sensitivity to context, respect for variety and otherness in human nature - outside of law, while associating law itself with abstraction, cerebration, blindness, and moral indifference. Despite this problem, I argue, Weisberg's project exemplifies one of the more admirable ambitions of the law/literature enterprise, the ambition to make lawyers and judges explicitly aware of, and accountable for, the ethical dimensions of their conduct. Whether right or wrong, Weisberg's infamous analysis of Billy Budd suggests that moral values inhere in the law itself and therefore do not have to be hijacked from a separate domain located "outside" of law.

Harcourt on on Prediction and Punishing Bernard E. Harcourt (University of Chicago - Law School) has posted Against Prediction: Sentencing, Policing, and Punishing in an Actuarial Age on SSRN. Here is the abstract:
    The actuarial - i.e. the use of statistical rather than clinical methods to predict past, present or future criminal behavior in order to determine a criminal justice outcome - now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to statistics as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate citizens who are at greater risk of criminal offending; and sentencing bodies can reduce crime if they incapacitate citizens who are more likely to recidivate in the future. Most people believe that the use of reliable actuarial methods in criminal justice represents progress. No one, naturally, is in favor of incorrect stereotypes and erroneous predictions; but, to most people, it makes sense to decide who to search based on reliable predictions of criminal behavior, or to impose punishment based on reliable estimates of reoffending. This article challenges our common sense. It sets forth three compelling reasons why we should be skeptical about - rather than embrace - the new actuarial paradigm. First, the reliance on predictions of future offending may be counterproductive to the primary goal of law enforcement, namely fighting crime. Though this may seem counterintuitive, it is, surprisingly, correct: the use of prediction may increase the overall amount of the targeted crime depending on the relative responsiveness of the targets (in comparison to the responsiveness of non-targeted citizens) to the changed level of law enforcement. The overall impact on crime depends on how the members of the different groups react to changes in the level of enforcement: if the profiled persons are less responsive, then the overall amount of profiled crime in society will likely increase. Second, the reliance on probabilistic methods produces a distortion of the carceral population. It creates a dissymmetry between the distribution of actual offenders and of persons who have contact with the criminal justice system through arrest, conviction, incarceration, or other forms of supervision and punishment. It produces a disproportionate rate of correctional contacts among members of the profiled group in relation to their representation in the offending population. This, in turn, compounds the difficulty of many members of targeted groups to obtain employment, pursue educational opportunities, or lead normal family lives. It represents a significant social cost that is often overlooked in the crime and punishment calculus. Third, the proliferation of actuarial methods has begun to bias our conception of just punishment. The perceived success of predictive instruments renders more appealing theories of punishment that function with prediction. It renders more natural theories of selective incapacitation and sentencing enhancements for citizens who are at greater risk of future dangerousness. In sum, it reshapes the way we think about just punishment. Yet the development of these actuarial devices are fortuitous advances in technical knowledge from disciplines such as sociology, psychology, and police studies that have no normative stake in the direction of our criminal laws and punishments. These technological advances represent, in this sense, exogenous shocks to our legal system. And this raises very troubling questions about what theory of just punishment we would independently embrace and how it is, exactly, that we have allowed technical knowledge, somewhat arbitrarily, to dictate the path of justice. Instead of embracing the actuarial turn in criminal law, we should be skeptical. The baseline presumption should favor randomization, which is, in fact, the only way to achieve a carceral population that reflects the offending population. Randomness in the policing context is simple: law enforcement could use a lottery system for IRS audits, random selection for airport screening, or numerical sequencing for consensual car searches on the highway. In the sentencing area, randomness means something quite different, but no less straightforward: it means imposing a sentence based on a proper metric and then avoiding the effect of prediction by eliminating parole or other devices that are prediction-based. Randomness does not mean drawing names out of a hat in deciding who to parole or how long to sentence. It means, instead, eliminating the effect of prediction. In criminal law and enforcement, the presumption should be against prediction. Actuarial methods should only be employed when it can be demonstrated to our satisfaction that they will promote the primary interest of law enforcement without imposing undue burden or distorting our conceptions of just punishment. Barring that, criminal law enforcement and correctional institutions should be blind to prediction.
Highly recommended!

Garoupa on Optimal Enforcement Technology Nuno Garoupa (New University of Lisbon - Faculdade de Economia) has posted On the Optimal Choice of Enforcement Technology: An Efficiency Explanation of the ECHR. Here is the abstract:
    This paper develops an economic analysis of enforcement technology choice and privacy rights. We provide an efficiency explanation for the Human Rights Act 1998 adopted by the UK. Our model suggests that an enforcement technology with privacy rights generates more offences (deterrence is diluted) and exhibits a reduced quality of convictions (in terms of false negatives and false positives), but could be welfare enhancing if the individual cost of being investigated is reasonably high. We also show that the choice of enforcement technology is related to the level of harm caused by crime, and it is likely that an enforcement technology with privacy rights will be welfare diminishing for extremely harmful crimes.

Daughety & Reinganum on Quality Signaling Andrew F. Daughety and Jennifer F. Reinganum (Vanderbilt University - Department of Economics and Vanderbilt University - Department of Economics) have posted Imperfect Competition and Quality Signaling on SSRN. Here is the abstract:
    We examine the interplay of imperfect competition and incomplete information in the context of price competition among firms producing horizontally- and vertically-differentiated substitute products. We find that incomplete information about vertical quality (e.g., consumer satisfaction), which is signaled via price, softens price competition, and that imperfect competition can reduce the degree to which firms may distort their prices to signal their types (relative to what a monopolist would do). We show that low-quality firms always prefer playing the incomplete information game to the full-information analog: their prices are higher and so are their profits. Moreover, for "high-value" markets, if the proportion of high-quality firms is high enough, high-quality firms also prefer incomplete information to full information. We find conditions such that an increase in the loss to consumers associated with consuming the low-quality product may perversely benefit low-quality firms. We discuss the implications of our analysis for recent tort reform proposals, incentives for the diffusion of general innovation to product-specific improvements, and licensing in markets with uncertain quality.

Tuesday, July 26, 2005
Garnett on Conversations With Catholicism Richard W. Garnett (Notre Dame Law School) has posted American Conversations With(in) Catholicism (Michigan Law Review, Vol. 102, p. 1191, May 2004) on SSRN. Here is the abstract:
    John T. McGreevy's Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicism's own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other. McGreevy's account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.

Lyons on Double Effect in Constitutional Law Edward C. Lyons (Ave Maria School of Law) has posted In Incognito: The Principle of Double Effect in American Constitutional Law (Florida Law Review, Vol. 57, No. 3, pp. 469-563, 2005) on SSRN. Here is the abstract:
    In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen "evil" effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction "comports with fundamental legal principles of causation and intent." Id. at 802. Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part I); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part II); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part III). My conclusion is that "[o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis."

Monday, July 25, 2005
McCaffery on Hybrid Income & Consumption Taxes Edward J. McCaffery (University of Southern California - Law School) has posted Good Hybrids/Bad Hybrids (Tax Notes, June 27, pp. 1699-1709, June 2005) on SSRN. Here is the abstract:
    Hybrid income-consumption taxes seek to tax some but not all savings, the treatment of savings being the principal difference between an income and a consumption tax. Some hybrids, however, simply move the tax system towards a prepaid consumption or wage tax; others, by allowing arbitrage, risk making all taxation voluntary. A consistent, progressive postpaid consumption tax, in contrast, gets matters just right, by design: it allows ordinary savings, for times of retirement or medical or educational needs, to lower the burden of taxation, while falling on the yield to savings when it is used to elevate lifestyles. It is, in short, a good hybrid.

Strahilevitz on Exclusionary Amenities Lior Strahilevitz (University of Chicago Law School) has posted Exclusionary Amenities in Residential Communities on SSRN. Here is the abstract:
    This essay identifies an important mechanism by which segregation arises in new residential developments. The Fair Housing Act and other antidiscrimination laws closely regulate real estate sales, advertising, and "racial steering." As a result of these laws and other factors, purchasers of homes often lack accurate information about the likely demographic makeup of a new neighborhood or condominium building. Yet these laws have not eroded the incentives for housing consumers to obtain this data. This essay argues that developers can circumvent fair housing laws by embedding costly, demographically polarizing amenities within a new development and recording covenants mandating that all homeowners pay for those amenities. Its central claim is that developers will select common amenities not only on the basis of which amenities are inherently welfare-maximizing for the residents, but also on the basis of which amenities most effectively deter "undesirable" residents from purchasing homes in the development. The essay dubs this approach the "exclusionary amenities strategy" and shows how it causes sorting and focal point mechanisms to act in concert, thereby engendering substantial residential homogeneity. The inability to exclude functions as an inducement to spend. During the 1990s, the United States experienced a boom in the construction of residential developments built around costly golf courses. This occurred at a time when golf participation functioned as a noticeably better proxy for race than income, wealth, or virtually any other characteristic. Curiously, substantial numbers of Americans who purchased homes in mandatory-membership golf communities played no golf. This essay offers circumstantial evidence suggesting that by purchasing homes in these communities, homeowners may simply have been paying a premium for residential racial homogeneity. They essay then identifies a number of other examples where developers, or even municipalities, appear to be pursuing an exclusionary amenities strategy. It also identifies instances in which the use of exclusionary amenities may further neutral, or even laudable, objectives. The essay then notes the possibility of inclusionary amenities, and shows how a few developers, common interest communities, and municipalities have used these amenities to achieve greater residential heterogeneity than would otherwise have been possible. It concludes by evaluating the law's current stance of leaving exclusionary amenities largely unregulated, and examines various strategies for curbing the use of exclusionary amenities to achieve racial homogeneity.

Bragues on Rorty George Bragues (University of Guelph-Humber) has posted Richard Rorty's Postmodern Case for Liberal Democracy: A Critique (Humanitas, Forthcoming) on SSRN. Here is the abstract:
    Liberal democracy, the combination of a representative polity and a market economy, was originally founded on the belief in moral absolutes - that is, on the idea that human beings intrinsically bear rights of freedom and equality against the state. Today, the existence of moral absolutes is widely rejected in what Jean-Francois Lyotard has called the postmodern condition. With no objective foundation to readily draw upon, advocates of liberal democracy are left with the challenge of mounting a compelling defence of that regime. Richard Rorty, one of America's most prominent philosophers, responds to this challenge by supporting liberal democracy on explicitly postmodern grounds. Rather than proving its superiority, Rorty merely aims to persuade his readers of liberal democracy's appeal. We conclude that Rorty's case fails. He goes too far in abandoning the socially useful ideals of rationality and objectivity, leaving us with a way of thinking that just does not square with our everyday experience of the world. He ends up with an overly politicized conception of philosophy, one which unashamedly descends into the most blatant partisanship. Rorty, too, ignores the growing evidence in favor of a partially fixed human nature, gives too much credence to social democratic economics, while vainly trying to ennoble the self-absorption that liberal democracy inevitably encourages and tolerates by passing it off under the exalted guise of self-creation.

Armour on Who Should Make Corporate Law John Armour (Faculty of Law, University of Cambridge) has posted Who Should Make Corporate Law? EC Legislation versus Regulatory Competition (Current Legal Problems, Vol. 48, 2005) on SSRN. Here is the abstract:
    This paper makes a case for the future development of European corporate law through regulatory competition rather than EC legislation. It is for the first time becoming legally possible for firms within the EU to select the national company law that they wish to govern their activities. A significant number of firms can be expected to exercise this freedom, and national legislatures can be expected to respond by seeking to make their company laws more attractive to firms. Whilst the UK is likely to be the single most successful jurisdiction in attracting firms, the presence of different models of corporate governance within Europe make it quite possible that competition will result in specialisation rather than convergence, and that no Member State will come to dominate as Delaware has done in the US. Procedural safeguards in the legal framework will direct the selection of laws which increase social welfare, as opposed simply to the welfare of those making the choice. Given that European legislators cannot be sure of the ‘optimal’ model for company law, the future of European company law-making would better be left with Member States than take the form of harmonized legislation.

Saturday, July 23, 2005
Legal Theory Bookworm The Legal Theory Bookworm recommends Justice in Plainclothes by Lawrence G. Sager. Here is a blurb:
    In this important book, Lawrence Sager, a leading constitutional theorist, offers a lucid understanding and compelling defense of American constitutional practice. Sager treats judges as active partners in the enterprise of securing the fundamentals of political justice, and sees the process of constitutional adjudication as a promising and distinctly democratic addition to that enterprise. But his embrace of the constitutional judiciary is not unqualified. Judges in Sager's view should and do stop short of enforcing the whole of the Constitution; and the Supreme Court should welcome rather than condemn the efforts of Congress to pick up the slack. Among the surprising fruit of this justice-seeking account of American constitutional practice are a persuasive case for the constitutional right to secure a materially decent life and sympathy for the obduracy of the Constitution to amendment. No book can end debate in this conceptually tumultuous area; but Justice in Plainclothes is likely to help shape the ongoing debate for years to come.

Dowload of the Week The Download of the Week is Legal Realism as Theory of Law by Michael Steven Green. Here is the abstract:
    Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all. This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense.
And let me also give you a paragraph or two from deep in the article:
    The reason that the realists did not reintroduce legal obligation when adopting a normative perspective on the law is that they were committed to a second argument against legal rules, an argument with strong similarities to Dworkin’s critique of Hart. As we have seen, the realists agreed with Hart that the law depends upon social facts concerning official practices. Like Dworkin, however,the realists thought that the only available objective reasons forconformity to these practices are moral. Dworkin’s response is toadopt a type of natural law theory in which officials’ legal obligationsare a form of moral obligation. But natural law theory can succeed only if there is a moral duty to obey every valid law, something the realists rejected. They understood the law “as a means to social ends and not as an end in itself.” Disobedience might be morally justified: “Gone is the ancient assumption that law is because law is; there has come since, and remains, the inquiry into the purpose of what courts are doing, the criticism in terms of searching out purposes and criticizing means. Here value-judgments reenter the picture, and should.” The realists did not merely believe that citizens have no moral duty to obey every valid law, they also believed that judges have no moral duty to enforce every valid law. This means that the facts concerning official practice that make something valid law must not be intrinsically morally salient for a judge. Since a promise to enforce the law is a fact that creates a prima facie moral duty, the realists must have thought that the facts concerning official practice do not necessarily involve promises on the part of participants. It is possible to become a judge without having promised, in either an express or implied fashion, to enforce all valid law.
I am far from sure that I agree with Green's claims, but I really liked this article--which deals with issues that go to the heart of the most important controversies in contemporary legal theory. Highly recommended!
Another Highly Recommended for Law's Aim in Law's Empire by John Gardner.

Rappaport Quibbles with a Quibble Mike Rappaport replies to my post criticizing a recent Wall Street Journal article.

Friday, July 22, 2005
Green on Legal Realism Michael Steven Green (George Mason University - School of Law) has posted Legal Realism as Theory of Law (William & Mary Law Review, Vol. 46, pp. 1915-2000, 2005) on SSRN. Here is the abstract:
    Most philosophers of law, following H.L.A. Hart, believe that the legal realists' rule-skepticism is not a coherent theory of law. Even Brian Leiter, who seeks to defend the realists against Hart, agrees that rule-skepticism fails as a theory of law. Indeed, an essential part of Leiter's rehabilitation of the realists is his argument that they did not mean to offer a theory of law at all. This article is a defense of the realists' rule-skepticism as a theory of law. The heart of my argument is that their rule-skepticism was actually an attack, common among philosophical anarchists, on the ability of the law to provide citizens (and particularly judges adjudicating cases) with objective reasons for obedience. Seen in this light, the realists' seemingly absurd claims that legal rules do not exist start making a good deal of sense.

Bernstein on Bolling David E. Bernstein (George Mason University - School of Law) has posted Bolling, Equal Protection, Due Process, and Lochnerphobia on SSRN. Here is the abstract:
    In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions. The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment's Equal Protection Clause. A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling as an opinion relying on an equal protection component of the Fifth Amendment's Due Process Clause is incorrect. In fact, Bolling was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner. Another surprise is that the proposition that Bolling has come to stand for, that the Fifth Amendment prohibits discrimination by the Federal Government, was not simply made up by the Supreme Court, but has a basis in longstanding precedent. Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause.

Perez on Institutionalizing Inconsistency Oren Perez (Bar-Ilan University, Faculty of Law) has posted The Institutionalization of Inconsistency: From Fluid Concepts to Random Walk (PARADOXES AND INCONSISTENCIES IN LAW, O. Perez and G. Teubner, eds., Oxford: Hart Publishing, 2005/6) on SSRN. Here is the abstract:
    Law plays a critical role in the management of modern societies. The leading status of the law depends, I argue, on its being perceived as a fair arbiter. In pluralistic societies this deep societal expectation presents the law with an irresolvable dilemma, reflecting competing conceptions of fairness. First, the law is expected to be consistent. Consistency requires avoiding incongruity or contradiction between legal rules, legal concepts, and legal practices. Underlying this requirement is the intuitive perception that incoherent law-making can be a source of real injustice. Denying or frustrating this expectation is seen as unjust. In pluralistic societies fairness takes on, however, an additional meaning; for the law to be conceived as fair it is expected also to develop 'pluralistic sensitivities'. This expectation reflects the social complexity of pluralistic societies. Pluralistic societies are torn by deep disagreements over questions of politics and morality; they are overburdened by conflicting definitions of the good or virtuous life (or society). The concept of pluralistic sensitivity requires the law to respect the cultural idiosyncrasies of the different communities and discourses comprising the society in which it operates. These two visions of fairness are, I will argue, incongruent. They are incongruent because the law does not have at its disposal some meta-principle, which can be invoked to resolve any possible social dilemma while satisfying the requirements of both coherence and pluralistic sensitivity. Particularistic sensitivity may thus, at least in some cases, require the law to follow an inconsistent path. The law is faced then with a deep paradoxical challenge: for it to be considered a 'fair' arbiter it must be simultaneously consistent and inconsistent. This challenge involves self-contradiction, because it is driven by internal and conflicting prescriptions. How can the law sustain these conflicting demands or expectations without risking its status as fair arbiter? The law, I argue, has institutionalized the paradox, incorporating it into 'normal' legal practice. This institutionalization was attained through the invocation of 'fluid' or 'vague' concepts and doctrines, such as equality, reasonableness, and the principles governing the practice of constitutional balancing. The use of vague concepts has offered the law a way to keep the paradox at bay, signalling that it can maintain its coherence despite the intense pluralism of its environment. The paper explores the institutional mechanisms which were utilized by the law to manage the paradox of coherence. The paper begins with an exploration of the structure and systemic role of legal vagueness. It decodes the way in which vagueness is used to handle the paradox, and explores the limits of this strategy as a mechanism for deparadoxification (using the precautionary principle as a case study). I argue that, while vagueness provides certain stability to the legal system, it may fall apart in times of pluralistic stress. The paper sketches two scenarios in which this process could unfold. The apparent fragility of vagueness as a strategy for handling the paradox justifies looking into alternative strategies. The paper proceeds to explore such an alternative strategy: 'randomization'. Randomness seems to offer a potential resolution to the paradox - a decision-making mechanism that enables the law to satisfy the requirements of both coherence and pluralistic sensitivity. However, a closer inspection reveals that randomization is a precarious strategy, whose capacity to resolve the paradox of coherence is highly restricted. Ultimately, I argue, there is no escape from the paradox of fairness, as neither vagueness nor randomization provides a definite resolution for the dilemma underlying it. It seems that we have no choice but to deal directly with the bare paradoxicality of modern law. The final section of the paper explores the consequences of this conclusion.

Lobel & Lowenstein on Symbolism in Foreign Policy & International Law Jules Lobel and George Loewenstein (University of Pittsburgh School of Law and Carnegie Mellon University - Department of Social and Decision Sciences) have posted Emote Control: the Substitution of Symbol for Substance in Foreign Policy and International Law (Chicago Kent Law Review, Vol. 80, July 2005) on SSRN. Here is the abstract:
    Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific 'dual process' perspective that distinguishes between "deliberative" and emote control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence of emotions not only on the general public, but on politicians and judicial decision makers, leads to a substitution of symbol for substance that can be seen at two different levels: (1) in the types of situations and stimuli that drive people to action (namely vivid symbols rather than rational arguments), and (2) in the types of actions that people take - specifically symbolic actions that are superficially satisfying as opposed to more substantive actions that are less immediately satisfying but actually more likely to produce desired long-term results.

Thursday, July 21, 2005
Quibbles There is a generally quite good article on the front page of today's Wall Street Journal entitled In Re Judge Roberts: Question Of 'Originalism' Looms Large by Jess Bravin, but I have a theoretical quibble or two:
    Quibble One: It's Original Meaning, Not Original Intent Here's the lead paragraph:
      When George W. Bush ran for president in 2000, he said his favorite Supreme Court justices were Antonin Scalia and Clarence Thomas. Those jurists argue that many modern legal precedents -- including the 1973 Roe v. Wade decision that recognized abortion rights -- improperly disregard the original intent of the Constitution's authors.
    When will the media (and many law professors for that matter) catch on to the fact that today's originalists are focused on "original public meaning" and not the "original intentions of the framers." In the popular media, this mistake is understandable--but not in an article that is purportedly about originalism.
    Quibble Two: Everyone Interprets "In Light of Evolving Standrads of Decency" Here is the passage:
      But there is a deeper and more complex argument that has been raging for years among legal scholars that the Roberts nomination now brings to center stage: whether constitutional provisions should be interpreted in light of "the evolving standards of decency that mark the progress of a maturing society," as the late Chief Justice Earl Warren wrote in a 1958 opinion on punishing military deserters.
    I suppose we get the meaning, but this is a terribly imprecise way of formulating the issue. Everyone interprets the constitution "in light of evolving standards"--there's now ay of avoiding that. The question is whether those evolving standards trump the constitutional text or change its meaning.
    Quibble Three: Examples Must be Explained Here is the passage:
      Under the living-Constitution banner, the Supreme Court has in recent decades concluded that Americans have "privacy rights," even though the document doesn't explicitly say so. The court derived from those rights the Roe decision on abortion, as well as other rulings ending government restrictions on contraception and, more recently, homosexual sodomy. The Warren Court and its followers used evolving interpretations to limit libel suits by public figures and curb execution of juveniles and the mentally retarded.
    This is really quite awful. Most originalists agree that you can't get privacy out of the due process clause, but many originalists believe that other provisions of the constitution--the Ninth Amendment & the Privileges and Immunities Clause--do support a conception of liberty that would be functionally equivalent to an impliled right to privacy. New York Times v. Sullivan may or may not be consistent with the original understanding of the freedom of speech, but Justice Brennan's opinion actually employed quite a bit of originalist methodology. You can't really have an informed discussion tossing off examples like this with no explanations.
End of diatribe.

Leib on Contract Types and Contract Theories Ethan Leib has posted On Collaboration, Organizations, and Conciliation in the General Theory of Contract on SSRN. Here is the absract:
    This short piece exposes a central shortcoming of all general theories of contract that purport to be comprehensive and descriptive: they tend to exclude whole types of contracts to make their theories fit. As the essay explains, there are contracts between individuals (Type (1)), between organizations (Type (3)), and between individuals and organizations (Type (2)). By carefully analyzing Daniel Markovits’s recent attempt at a contract theory in his Contract and Collaboration, 113 YALE L.J. 1417 (2004), as well as looking at Schwartz and Scott’s recent effort in Contract Theory and the Limits of Contract Law, 113 YALE L.J. 541 (2003), I am able to expose how contract theorists ignore various Types of contracts to their theories’ detriment. At the conclusion, I suggest how Types of contracts are relevant to contract theory construction—and how a focus on Types can point to a resolution of some of the ongoing debates in contract theory.

Choper on the Political Question Doctrine Jesse H. Choper (University of California, Berkeley - School of Law (Boalt Hall)) has posted The Political Question Doctrine: Suggested Criteria (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:
    Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed - textual commitment - is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these - structural issues: federalism and separation of powers - has been advanced and developed at length in my earlier work. It is based on a comparative advantage of the political process over the Court in sound constitutional decisionmaking respecting the relevant issues, as well as the trustworthiness respecting fundamental values of the national legislative/executive branches in doing so. The remaining two criteria involve removing questions of individual rights from the judiciary's realm, something that would (and should) occur very infrequently. The manageable standards test recognizes that there may be constitutional provisions for which the Court lacks the capacity to develop clear and coherent principles. The generalized grievance guide is similar in many ways to structural issues in that it is also grounded in matters of comparative advantage and trustworthiness of results.

Sany on the Separation Barrier Cases Yuval Shany (Law School, College of Management Academic Studies) has posted Capacities and Inadequacies: A Look at the Two Separation Barrier Cases (Israel Law Review, Vol. 38, pp. 230-246, 2005) on SSRN. Here is the abstract:
    Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israel's West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Court's refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each other's institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

Sedley on the Future of Human Rights Stephen Sedley (The Royal Courts of Justice - England and Wales) has posted The Rocks or the Open Sea: Where is the Human Rights Act Heading? (Journal of Law and Society, Vol. 32, No. 1, pp. 3-17, March 2005) on SSRN. Here is the abstract:
    This essay attempts a broad appraisal of how the Human Rights Act 1998 has been interpreted and applied by the courts of England and Wales since it came into force in October 2000. These are early days, but its provisional conclusion is that the Act, despite some judicial hesitancy, is proving viable and, at least in some respects, beneficial.

Roberts Won't "Bork" Himself in Public I've been reviewing John Robert's opinions and other legal writings since the nomination was announced. There are some clues to his views about legal theory--more on that in the weeks to come--but I already have one firm prediction: Roberts won't "Bork" himself in public. Robert Bork's public persona--his character and manner of self-presentation--were shaped by his academic career. The academic life shapes character and behavior in ways that have the potential for both good and ill. Serious academics are encouraged to "spout off"--to express their opinions and ideas. Law professors are used to an environment of intellectual inequality--the paradigm teaching experience is Socratic dialogue in a first-year classroom. "Bork" has become a verb--we talk about someone getting "Borked," referring to the intense and partisan atmosphere of his confirmation process. But I should like to suggest that Bork "Borked" himself--that he said far too much about ideas that were appropriate for the seminar room but out-of-place in the hearing room. But John Roberts is no Robert Bork. His temperment and personal style have been shaped by the experience of high-level legal practice, including the exacting crucible of Supreme Court advocacy. That experience encourages humility, self-restraint, and caution about the expression of ideas. Do not expect John Roberts to be goaded into expressing dogmatic opinions about particular issues or high constitutional theory. Do not expect Roberts to articulate controversial views about originalism or any other "ism." In other words, do not expect John Roberts to "Bork" himself. Of course, there are others who will attempt to "Bork" John Roberts--to draw controversial and political contentious implications from his writings and opinions. But if we set aside the controversial positions, he took in written briefs--as we should, it is already becoming clear that it will be very difficult to "Bork" Roberts on the basis of his judicial opinions or articles. What John Roberts has written in his own voice reflects the character shaped by his life as a lawyer. Roberts hasn't "Borked" himself yet. Don't expect it to happen soon.

Ethics of Blogging Survey Some months ago, I participated in a survey on the ethics of blogging. You can view the results here. Here is a taste from the analysis, which focuses in part on the distinction between "personal" and "non-personal" bloggers:
    Although a few blogging ethics codes for have been proposed by scholars (Blood, 2002; Dube, 2003; Kuhn, 2005), this is the first study to examine whether bloggers themselves see a need for a blogging ethics code. A code is only as useful as the number of people who would adhere to it. Our findings show that both personal and non-personal bloggers are quite ambivalent as to whether a blogging code of ethics is needed. As most non-personal bloggers take a journalistic approach in their writing (Kuhn, 2005), it seems reasonable to expect them to see a need for a blogging ethics code (akin to that of journalism ethics code) when compared with personal bloggers. However, our findings revealed no significant difference between personal and non-personal bloggers’ agreement on the need for a blogging ethics code. A plausible reason is that blogging is an activity that is “almost exclusively a part-time voluntary solipsistic enterprise” with virtually no income generated from blogging for the vast majority of people (Drezner and Farrell, 2004, p. 4). In fact, it is estimated that no more than two dozen individuals in the US earn their living from blogging (Drezner and Farrell, 2004). For everyone else, blogging is just a hobby, so it seems unlikely that many people will have developed a sense of responsibility and a system of ethics comparable to journalists and other communication professionals.

Update: And check out this post by Larry Ribstein.

Wednesday, July 20, 2005
Fellowship Announcement
    Deadline for application for 2005-2006 CIS Non-Residential Fellows is August 20, 2005. Stanford Law School's Center for Internet and Society Non-Residential Fellows work independently and with CIS staff and faculty on projects related to CIS' mission. These non-supported fellowships allow practitioners to benefit from synergies with Stanford Law School in their scholarly research. Non-Residential Fellows are encouraged to make their work available through CIS and to present their work at the CIS Speaker Series. This fellowship is particularly appropriate for individuals who are interested in studying a cyberlaw issue or working on a cyberlaw project that is outside the scope of their usual work and who would benefit from the affiliation with and support of Stanford CIS. apply here: The Center for Internet and Society (CIS) is a public interest technology law and policy program at Stanford Law School and a part of Law, Science and Technology Program at Stanford Law School. The CIS brings together scholars, academics, legislators, students, programmers, security researchers, and scientists to study the interaction of new technologies and the law and to examine how the synergy between the two can either promote or harm public goods like free speech, privacy, public commons, diversity, and scientific inquiry. The CIS strives as well to improve both technology and law, encouraging decision makers to design both as a means to further democratic values. CIS provides law students and the general public with educational resources and analyses of policy issues arising at the intersection of law, technology and the public interest. CIS and the Cyberlaw Clinic provide legal representation to clients in matters that raise issues involving civil rights and technology. CIS also sponsors a range of public events including a speakers series, conferences and workshops. More about CIS:

Barnett on Roberts Check out Randy Barnett's Who is John Roberts? Who knows? as the Conspiracy. Here's a taste:
    But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the enumerated powers of Congress? We don't know. Would he have ruled with the majority in Kelo? We don't know. What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.
And here is a link to a big PDF file of his confirmation for the DC Circuit. I've been reading every Roberts opinion. I'm currently about 1/2 way through the three-hundred plus cases he's participated in. So far, I must say that it isn't very interesting!

Lipshaw on the Duty Not to Enforce a Promise The always interesting Jeff Lipshaw has posted Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise on SSRN. Here is the abstract:
    In this essay, I suggest the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. Moral decisions are the ones made without any threat of compulsion from the law. The clearest example in commercial relationship of a moral decision unfettered by the positive law is the promisee's choice not to enforce an otherwise legally binding contract. As a matter of logic, if not practice, a court cannot impose a duty to do so, either as a matter of positive law theory or natural law theory that contends law is not law unless it rests on a deep structure of values like fairness or justice or liberty. Nevertheless, that sense of obligation on the part of the promisee is regularly sensed and even acted upon in commercial relationships, and its source is the will of the autonomous agent who has not traded freedom for compulsion or compliance.
I read an early draft of this challening & deep essay. Recommended!

Farrelly on Left-Libertarianism Colin Farrelly has posted Should the Left Embrace Left-Libertarianism on SSRN. Here is a taste:
    Many distinct and varied political theories have been advanced in recent years by political philosophers on the left. From appeals to a hypothetical social contract (Rawls, 1971, 1993) and the ideal of a deliberative democracy (Gutmann and Thompson 1996, 2004; Ackerman and Fishkin 2004; Dryzek 2000), to an emphasis on identity (Appiah 2004; Phillips 1995; Young 1990) and multiculturalism (Kymlicka 1989, 1995; Parekh 2000), political philosophers have adopted a vast array of theoretical perspectives for diagnosing the ills of contemporary capitalist societies and they offer a plethora of different prescriptions for remedying these injustices. One position that some on the left (Steiner, 1994; Van Parijs 1995; Otsuka 2003; Vallentyne and Steiner 2000a and2000b), find attractive is left-libertarianism. “Left-libertarian theories of justice hold that agents are full self-owners and that natural resources are owned in some egalitarian manner” (Vallentyne and Steiner, 2000b; 1). Debates concerning the viability of leftlibertarianism as a political ideology are beginning to gain momentum. Barbara Fried (2004, 2005) argues that one of the pillars of left-libertarianism- self-ownership- is an indeterminate concept and that left-libertarianism is indistinguishable from liberal egalitarianism. Mathias Risse (2004) argues that left-libertarianism is incoherent. Left libertarians have retorted (Vallentyne, Steiner and Otsuka, 2005) by arguing that their theory is coherent, determinate and relevant. For the most part, the central focus on of these spirited debates has been on the philosophical underpinnings of left-libertarianism rather than on its practical prescriptions.

Guiora on Counter-Terrorism & the Rule of Law Amos N. Guiora (Case Western Reserve University School of Law) has posted Counter-terrorism and the Rule of Law on SSRN. Here is the abstract:
    This paper examines the difference between administrative law measures in counter-terrorism (deportations, house demolitions and administrative detentions) and the criminal law in developing a counter-terrorism strategy. Furthermore, the article analyzes a number of critical issues related to counter-terrorism including indefinite detention, judicial review, self-defense, torture and the status of terrorists.

Tuesday, July 19, 2005
Debate on Judicial Review in Dissent Check this out! It begins with:Followed by:And:And concludes with:Great stuff!

Burgess-Jackson on Fish Keith Burgess-Jackson takes Stanley Fish to task for failing to acknowledge the distinction between "speakers meaning" and "sentence meaning". Here's a taste:
    Stanley Fish knows just enough philosophy to be dangerous. Here is his op-ed column from today's New York Times. Early in his column, Fish writes:
      Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice [Antonin] Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry." The problem is that there is no such object.
    Philosophers distinguish between speaker's meaning (i.e., what is meant or intended) and sentence meaning (i.e., what is said). See here. The former is private and subjective, the latter public and objective. Suppose my child is twisting the cat's tail, making the cat cry. I say, "I'm sure the cat enjoys having its tail twisted." What I said is that I'm sure the cat enjoys having its tail twisted. What I meant is roughly the opposite of this: that the cat doesn't enjoy having its tail twisted. Sarcasm and irony are possible because, and only because, speaker's meaning and sentence meaning can come apart. They don't always come apart, but they can.
Very well down & spot on! The distinction between speaker's meaning and sentence meaning is usually attributed to Paul Grice--whose work I deeply admire and have been profoundly influence by. Here is a link to a short piece on Grice. I highly recommend his book, Studies in the Way of Words, published by Harvard University Press in 1989.
Update: See also Mike Rappaport's post here and this post by Jim Lindgren.

John G. Roberts, Jr. . . . is reportedly President Bush's nominee. Here is his out-of-date bio from Westlaw:
    He graduated from Harvard College, summa cum laude, in 1976, and received his law degree, magna cum laude, in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review. Following graduation he clerked for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, and the following year for then-Associate Justice William H. Rehnquist.Following his clerkship experience, Mr. Roberts served as Special Assistant to United States Attorney General William French Smith. In that capacity he handled a broad range of constitutional and law enforcement issues for the Attorney General, dealing with state and local officials and representatives of foreign governments, as well as general counsel throughout the federal government. In 1982 President Reagan appointed Mr. Roberts to the White House Staff as Associate Counsel to the President, a position in which he served until joining Hogan & Hartson L.L.P. in 1986. Mr. Roberts' responsibilities as Associate Counsel to the President included counseling on the President's constitutional powers and responsibilities, as well as other legal issues affecting the executive branch.At Hogan & Hartson, Mr. Roberts developed a civil litigation practice, with an emphasis on appellate matters. He personally argued before the United States Supreme Court and the lower federal courts, participating in a wide variety of matters on behalf of corporate clients, trade associations, governments, and individuals.Mr. Roberts left the firm in 1989 to accept appointment as Principal Deputy Solicitor General of the United States, a position in which he served until returning to the firm in 1993. In that capacity he personally argued before the Supreme Court and the federal courts of appeals on behalf of the United States, and participated in formulating the litigation position of the government and determining when the government would appeal adverse decisions. Mr. Roberts had general substantive responsibility within the Office of the Solicitor General for cases arising from the Civil and Civil Rights Divisions of the Justice Department, as well as from a variety of independent agencies, including the FDIC, RTC, Federal Reserve Board, EEOC, FCC, SEC, CFTC, and SBA. He also participated in the judicial selection process.Mr. Roberts has presented oral argument before the Supreme Court in more than thirty cases, covering the full range of the Court's jurisdiction, including admiralty, antitrust, arbitration, environmental law, First Amendment, health care law, Indian law, bankruptcy, tax, regulation of financial institutions, administrative law, labor law, federal jurisdiction and procedure, interstate commerce, civil rights, and criminal law.Mr. Roberts is a member of the American Law Institute and the American Academy of Appellate Lawyers, and has also received the Edmund J. Randolph Award for outstanding service to the Department of Justice. He is a member of the Bars of the District of Columbia, the United States Supreme Court, and various federal courts of appeals.

Link for Gardner's Paper My apologies for omitting the link to John Gardner's paper. (Scroll down for an excerpt.) Here's the link: Law's Aim in Law's Empire.

Streumer Reviews Audi On Notre Dame Philosophical Reviews, Bart Streumer, Fitzwilliam College, Cambridge University, reviews Robert Audi, The Good in the Right: A Theory of Intuition and Intrinsic Value. Here is a taste:
    Like many good books, Robert Audi's book The Good in the Right is based on a simple idea. The idea is that the following two things can both be true of a proposition p: (1) p is self-evident. (2) p can be inferred from other propositions. Like many good ideas, this idea is not new. For example, Russell already noted that, if arithmetic can be deduced from logic, (1) and (2) are both true of the simple propositions of arithmetic. What is new, however, is Audi's application of the idea to ethics. This enables him to defend an ethical theory that is a surprising combination of intuitionism and Kantianism.

"International Justice" Entry Posted on the Stanford Encyclopedia of Philosophy Michael Plake has posted International Justice on the Stanford Encyclopaedia of Philosophy. Here is a taste:
    International justice has only recently become a serious topic within political philosophy. Philosophers have, of course, long debated certain moral aspects of international politics; the morality of warfare and international relations has always been a central focus of political ethics. It is only in the past thirty years, however, that a sustained effort has been made to develop ethical analyses of international politics drawing upon the traditional concerns of domestic justice. Topics such as rights, constitutionalism, toleration, and—perhaps most importantly—the distribution of scarce resources have now been placed at the forefront of discussions of international ethics. In this, philosophers have begun the project of extending their domestic analyses of justice into the international arena.

Davenport Review Religion and the Liberal Polity On Notre Dame Philosophical Reviews, John J. Davenport, Fordham University, reviews Religion and the Liberal Polity, Terence Cuneo, ed., Religion and the Liberal Polity, University of Notre Dame Press, 2005, 280pp, $22.00 (pbk), ISBN 0268022895. Here is a taste:
    Religion and the Liberal Polity is a collection of innovative essays from a highly distinguished group of authors resulting from a PEW Trust seminar with Nicholas Wolterstorff. The book is similar in quality to an earlier collection edited by Paul Weithman in 1997. Most of the essays are successful in finding new angles on their chosen topics, including the question of whether it is right for citizens and officials in democratic societies to use religious beliefs as bases for political choices or cite religious reasons in political advocacy. This question has become familiar in political philosophy and democratic theory since the 1990s, when an imposing list of religious thinkers -- from Weithman and Wolterstorff to Philip Quinn, Chris Eberle, Kent Greenawalt and several others -- challenged secular-reason requirements defended by John Rawls and Robert Audi. These critics were motivated both by (1) the conviction that secularist political theory is cutting itself off from powerful strands of liberal religious conscience that helped abolish slavery and win civil rights, and (2) that contemporary liberal theory is undermining democracy by restricting it to inadequate epistemic sources of justification.

Monday, July 18, 2005
Guiora on Targeted Killing Amos N. Guiora (Case Western Reserve University School of Law) has posted Targeted Killing as Active Self-Defense (Case Western Reserve Journal of International Law, Vol. 36, p. 319, 2004) on SSRN. Here is the abstract:
    The paper argues that targeted killing is a legitimate form of active self-defense in the context of anticipatory self-defense. If the decision to target a particular individual is based on reliable and corroborated intelligence information and on the premise that no alternatives exist (the individual for operational reasons may not be arrested) and the individual to be targeted is a significant terrorist whose death will impact upon the terrorist organization then the decision is legal. In addition, the article calls for a revamping of international law reflecting the reality that traditional warfare between states has been replaced by armed conflict between states and non-state actors, some state supported, others not.

Gardner on Law's Aim John Gardner (Oxford) has posted Law's Aim in Law's Empire. Gardner is deep, interesting, sophisticated, and works from a perspective that is very much his own. Here is a taste from the introduction of the paper:
    Does law have a purpose or point? Surely it does. The trickier questions are these: Does law have a unifying purpose or point? Does law have a distinctive purpose or point? Many think that, inasmuch as law has a unifying purpose – such as ‘the guidance of conduct’ – it is not a distinctive purpose. It is a purpose shared by many things that are not law. And inasmuch as law has more distinctive purposes – such as ‘being the final public arbiter of disputes’ or ‘monopolizing the use of force’ – they are not unifying. Each such purpose is the purpose of some law but not of all law. H.L.A. Hart’s book The Concept of Law is perhaps the best-known defence of this conjunction of views.1 Although he accepts that law has purposes, Hart advances a non-purposive (and indeed non-functional2) account of what legal norms have in common that distinguishes them from other norms.
    Ronald Dworkin belongs to a long tradition of writers who hold, by contrast, that law has some purpose that is both unifying and distinctive. His book Law’s Empire is an unusual contribution to this tradition in that it stands for the view that law must have a unifying-and-distinctive purpose, but it does not commit itself to a final view on what this purpose is.3 In chapter 3 of Law’s Empire, Dworkin provisionally attributes a purpose to law in order to ‘organize[ ] further argument about law’s character’.4 Even if he has this purpose wrong, he argues, some unifying-and-distinctive purpose for law must be relied upon if arguments about the nature of law are to get off the ground. We need ‘a statement of the central concept of [our] institution that will allow [us] to see our arguments … as arguments over rival conceptions of that concept.’5 To furnish such a ‘conceptual statement’6 in the case of law, he says, we must find ‘the most abstract and fundamental point of legal practice’.7 For law is an ‘interpretive enterprise’8 and this means that those who are interested in finding out what (else) is true about law have to begin by taking an ‘interpretive attitude’ to their subject. This in turn means starting from the assumption that law ‘has some point’ that sets it apart and brings it together it as the particular interpretive enterprise that it is.
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