Legal Theory Blog



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

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Links for Legal Theory Blog

--Lawrence B. Solum (My Homepage at the University of Illinois)

--My College of Law Directory Page

--My Philosophy Department Directory Page

--Email me

--Legal Theory Annex
(All the theory that does not fit.)

--Legal Theory Lexicon
(Basic concepts in legal theory for first year law students.)

--My Publications on SSRN

Noteworthy Posts

Hiring Trends at 18 "Top" American Law Schools

2005-06 Report on Law School Entry Level Hiring

2004-05 Report on Law School Entry Level Hiring

2003-04 Report on Entry Level Hiring

Legal Theory Bookclub: Lessig's Free Culture

Getting to Formalism

Water Wells and MP3 Files: The Economics of Intellectual Property

Do Humans Have Character Traits?

Naturalistic Ethics

The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?
Part I: The Three Step Argument
Part II: Stare Decisis and the Ratchet
Part III: Precedent and Principle

Fear and Loathing in New Haven

A Neoformalist Manifesto

Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy

Breaking the Deadlock: Reflections on the Confirmation Wars

Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts

Archives

09/01/2002 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2011 - 04/01/2011

Blogosphere

New: --PrawfsBlog
(Group BLog)


--Balkinization
(Jack Balkin)

--Crescat Sententia
(Group Blog)

--Crooked Timber
(Group Blog)

--De Novo
(Group Blog)

--Desert Landscapes
(Group Blog)

--Discourse.Net
(Michael Froomkin)

--Displacement of Concepts
(Group Blog)

--Election Law
(Rick Hasen)

--Freedom to Tinker
(Ed Felten)

--The Garden of Forking Paths

--How Appealing
(Howard Bashman)

--Instapundit
(Glenn Reynolds)

--Is That Legal?
(Eric Muller)

--Law & Society Weblog
(Group Blog)

--The Leiter Reports
(Brian Leiter)

--Lessig Blog
(Lawrence Lessig)

--Marstonalia
(Brett Marston)

--Paper Chase @ Jurist
(Bernard Hibbitts)

--Political Arguments
(Group Blog)

--ProfessorBainbridge.com
(Stephen Bainbridge)

--Pea Soup
(Group Blog)

--Punishment Theory
(Group Blog)

--The Right Coast
(Group Blog)

--SCOTUS Blog
(Group Blog)

--Sentencing Law and Policy
(Douglas Berman

--Statutory Construction Zone
(Gary O'Connor)

--TaxProf Blog
(Paul Caron)

--Volokh Conspiracy
(Group Blog)

Websites of Interest

+Arts and Letters Daily

+Conference Alerts

+Daily Whirl

+fa.philos-l

+Economic Theory News

+Encyclopedia of Law and Economics

+Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository

+Law and Politics Book Reviews

+Metapsychology Book Reviews

+Notre Dame Philosophical Review

+Online Papers in Philosophy

+PoliticalTheory.info

+SSRN Most Recent Uploads

More Blogs of Interest

--Althouse
(Ann Althouse)

--Asymmetrical Information
(Jane Galt)

--bIPlog
(Group Blog)

--The Blawg Review
(Group Blog)

--Brad DeLong

--The Buck Stops Here
(Stuart Buck)

--Copyfight
(Group Blog)

--A Copyfighter's Musings
(Derek Slater)

--The Curmudgeonly Clerk

--Daniel Drezner

--Discriminations
(John and Jessie Rosenberg)

--Eastmania
(Wayne Eastman)

--EveTushnet.com
(Eve Tushnet)

--Freespace
(Timothy Sandefur)

--Furdlog
Frank Field

--Ideoblog
(Larry Ribstein)

--The Importance Of
(Ernest Miller)

--The Indiana Law Blog
(Marcia J. Oddi)

--Infothought
(Seth Finkelstein)

--IPKat
(Jeremy Phillips and Ilanah Simon)

--Law and Economics Blog
(Greg Goelzhauser)

--Law Dork
(Chris Geidner)

--Law Meme
(Group Blog)

--Lee Blog
Edward Lee

--Legal Ramblings
(Steven Wu)

--Lenz Blog
(Karl-Friedrich Lenz)

--Letters of Marque
(Heidi Bond)

--The Light of Reason
(Arthur Silber)

--Matthew Yglesias

--philosophy.com
(Gary Sauer-Thompson )

--Public Defender Dude

--Rodger A. Payne's Blog

--Southern Appeal
(Group Blog)

--Strange Doctrines/A>

--Susan Crawford blog

--A Taxing Blog
(Group Blog)

--That's News to Me
(Group Blog)

--Thoughts Arguments and Rants
(Brian Weatherson)

--Three Years of Hell to Become the Devil

--The Trademark Blog
(Martin Schwimmer)

--Troppo Armadillo
(Ken Parish)

--Technology 360

--Tutissima Cassis
(Nate Oman)

--Unlearned Hand

--Weatherall's Law
(Kim Weatherall)

--WENDY.SELTZER.ORG
(Wendy Seltzer)

--yin
(Tung Yin)

Legal Theory Programs & Websites

--Arizona State Committee on Law and Philosophy

--Cambridge Forum for Legal and Political Philosophy

--Columbia Law School Center for Law and Philosophy

--Columbia Legal Theory Workhsop

--Georgetown University Law Center--Colloquium on Constitutional Law and Theory

--Jurisprudence and Social Policy Program (U.C. Berkeley)

--Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley)

--NYU Colloquium in Legal, Political and Social Philosophy

--Oxford Jurisprudence Discussion Group

--Oxford Legal Philosophy

--Oxford Centre for Ethics & Philosophy of Law

--Queen's University Belfast Forlum for Law and Philosophy

--Rutgers Institute for Law and Philosophy

--UCLA Legal Theory Workshop

--University of Pennsylvania Institute for Law and Philosophy

--University College London: Colloquium in Legal and Social Philosophy

--University of Chicago Law And Philosophy Workshops

--University of Chicago: John M. Olin Program in Law and Economics Workshop

--University of San Diego Institute for Law and Philosophy

--University of Texas Law and Philosophy Program

--Yale Law School: Legal Theory Workshop

Links to Law School Workshops

+Australian National University Faculty Events

+Boston University

+Buffalo

+Columbia Center for Law and Economic Studies

+Florida State

+Fordham

+George Mason

+George Washington--IP Workshop Series

+Georgetown Colloquium on Intellectual Property & Technology Law

+Georgetown Law Workshops

+Georgetown Law and Economics Workshop

+Georgetown Law & Economics Workshop Series

+Hofstra

+University of Illinois

+Lewis & Clark

+Loyola Marymount

+New York University

+NYU Legal History Colloquium

+Northwestern Law Colloquium

+Oxford Law Events

+Rutgers, Camden

+Stanford Center for Internet & Society

+Stanford Law School Olin Series

+UCLA Colloquium

+UCLA Legal History Workshop

+UCLA Tax Policy

--University of Chicago: John M. Olin Program in Law and Economics Workshop

+University of Michigan Law and Economics

+University of San Diego Colloquium Series

+University of Texas Colloquium Series

+Vanderbilt Scholarly Programs & Events Calendar

+Villanova

+Washington & Lee Faculty Workshops

+Yale Law, Economics & Organizations Workshop

Calendars & Events

+Aristotelian Society

+British Society for Ethical Theory

+Conference Alerts

+Events in Analytic Philosophy in Europe (and Overseas Countries)

+The Philosophical Calendar

+Philosophy Now Calendar

+Political Science Online Upcoming Conferences

+SSRN Professional Announcements

Other Programs

--Australian National University, Research School of Social Science, Philosophy Seminars

--Boston University Philosophy Colloquia

--Brown University Philosoophy Upcoming Events

George Mason Workshop in Philosophy, Politics, and Economics

--Harvard University, Philosophy Colloquia

--MIT Philosophy Colloquia

--New York University, Philosophy Events

--Oxford: Events at the Faculty of Philosophy

--Princeton University: Philosophy Department Talks

--Princeton University: Political Philosophy Colloquium

--Princeton University: Public Law Colloquium

--Princeton University: Seminar in Law and Public Affairs

--Tulane Philosophy and Center for Ethics & Public Affairs Seminars

--University College, London: Political Theory Seminars

--University of Arizona Philosophy Colloquia

--University of Bristol Philosophy Research Seminars

--University of California at Berkeley Philosophy Events

--University of California at San Diego Philosophy Colloquia

--University of Chicago Political Theory Workshop

--University of London, School of Advanced Study, Philosophy Programme

--University of Manchester Politics & Philosophy Research Seminars

--University of Melbourne Philosophy Events

--University of North Carolina: Philosophy Speakers

--University of Pennsylvania: Philosophy Colloquiua

--University of Pittsburgh Philosophy Calendar

--Yale Philosophy Department Talks

Some Legal Theorist Homepages

--Robert Alexy (Christian Albrechts University Kiel)

--Randy Barnett (BU)

--Brian Bix (Minnesota)

--Jules Coleman(Yale Law & Philosophy)

--Ronald Dworkin(NYU & University College)

--John Finnis(Oxford and Notre Dame)

--John Gardner (Oxford)

--Brian Leiter (Texas)

--Micahel Moore (Illinois)

--Dennis Patterson (Rutgers, Camden)

--Stephen Perry (NYU)

--Richard Posner (University of Chicago & USCA7)

--Joseph Raz (Oxford and Columbia)

--Jeremy Waldron (Columbia

More to come!

Journals Specializing in Legal Philosophy

--American Journal of Jurisprudence

--The Journal of Philosophy, Science, and Law

--Law and Philosophy

--Law and Social Inquiry

--Legal Theory

--Oxford Journal of Legal Studies

Legal Theory Resources on the Web

Entries from the Stanford Encyclopedia of Philosophy

+Austin, John

+justice, distributive

+justice, as a virtue

+legal philosophy, economic analysis of law

+legal reasoning, interpretation and coherence

+legal rights

+liberalism

+libertarianism

+naturalism in legal philosophy

+nature of law

+nature of law, legal positivism

+nature of law, pure theory of law

+republicanism

From the Oxford Handbook of Jurisprudence

+Natural Law Theory: The Modern Tradition

From the Oxford Handbook of Legal Studies

+Law as an Autonomous Discipline

From the Examined Life

A Critical Introduction to Liberalism

Papers & Articles

+Virtue Jurisprudence

Organizations

+American Political Science Association(APSA)

+American Society for Political and Legal Philosophy (ASPLP)

+Association of American Law Schools(AALS)

+Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR)

+Law and Society Association

+Midwest Political Science Association (MPSA)

My Postal Address
Lawrence B. Solum
University of Illinois College of Law
504 East Pennsylvania Ave
Champaign, IL 61820
USA



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Saturday, July 22, 2006
 
Legal Theory Bookworm The Legal Theory Bookworm recommends Dred Scott and the Problem of Constitutional Evil by Mark A. Graber. Here's a blurb:
    An examination of what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of good society. In order to form a 'more perfect union' with slaveholders, late eighteenth century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.

Posted by Lawrence Solum at 7/22/2006 05:15:00 AM

 
Download of the Week The Download of the Week is Terms of Use by Mark Lemley. Here is the abstract:
    Electronic contracting has experienced a sea change in the last decade. Ten years ago, courts required affirmative evidence of agreement to form a contract. No court had enforced a “shrinkwrap” license, much less treated a unilateral statement of preferences as a binding agreement. Today, by contrast, it seems widely (though not universally) accepted that if you write a document and call it a contract, courts will enforce it as a contract even if no one agrees to it. Every court to consider the issue has found “clickwrap” licenses, in which a user clicks “I agree” to standard form terms, enforceable. A majority of courts in the last ten years have enforced shrinkwrap licenses, on the theory that people agree to the terms by using the software they have already purchased. Finally, and more recently, an increasing number of courts have enforced “browsewrap” licenses, in which the user does not see the contract at all but in which the license terms provide that using a Web site constitutes agreement to a contract whether the user knows it or not. Collectively, we can call these agreements “terms of use” because they control (or purport to control) the circumstances under which buyers of software or visitors to a public Web site can make use of that software or site. The rise of terms of use has drawn a great deal of attention because of the mass-market nature of the resulting agreements. Terms of use are drafted with consumers or other small end users in mind. Commentators - myself among them - have focused on the impact of this new form of contract on consumers. But in the long run they may have their most significant impact not on consumers but on businesses. The law has paid some attention to the impact of terms of use on consumers. Virtually all of the cases that have refused to enforce a browsewrap license have done so in order to protect consumers; conversely, virtually all the cases that have enforced browsewrap licenses have done so against a commercial entity. And shrinkwrap and clickwrap cases, while enforcing some contracts against consumers, have protected those consumers against certain clauses considered unreasonable. Businesses, however, are presumed to know what they are doing when they access another company's Web site, so courts are more likely to bind them to that site's terms of use. Sophisticated economic entities are unlikely to persuade a court that a term is unconscionable. And because employees are agents whose acts bind the corporation, the proliferation of terms of use means that a large company is likely “agreeing” to dozens or even hundreds of different contracts every day, merely by using the Internet. And because no one ever reads those terms of use, those multiple contracts are likely to have a variety of different terms that create obligations inconsistent with each other and with the company's own terms of use. We have faced a situation like this before, decades ago. As business-to-business commerce became more common in the middle of the 20th Century, companies began putting standard contract terms on the back of their purchase orders and shipment invoices. When each side to a contract used such a form, courts had to confront the question of whose form controlled. After unsuccessful judicial experimentation with a variety of rules, the Uniform Commercial Code resolved this “battle of the forms” by adopting a compromise under which if the terms conflicted, neither party's terms became part of the contract unless the party demonstrated its willingness to forego the deal over it. Rather, the default rules of contract law applied where the parties' standard forms disagreed, but where neither party in fact insisted on those terms. I have three goals in this paper. First, I explain how courts came to enforce browsewrap licenses, at least in some cases. Second, I suggest that if browsewraps are to be enforceable at all, enforcement should be limited to the context in which it has so far occurred - against sophisticated commercial entities who are repeat players. Finally, I argue that even in that context the enforcement of browsewraps creates problems for common practice that need to be solved. Business-to-business (b2b) terms of use are the modern equivalent of the battle of the forms. We need a parallel solution to this “battle of the terms.” In Part I, I describe the development of the law to the point where assent is no longer even a nominal element of a contract. In Part II, I explain how the recent decisions concerning browsewrap licenses likely bind businesses but not consumers, and the problems that will create for commercial litigation. Finally, in Part III, I discuss possible ways to solve this coming problem and some broader implications the problem may have for browsewrap licenses generally.
Download it while its hot!

Posted by Lawrence Solum at 7/22/2006 05:14:00 AM

Friday, July 21, 2006
 
Welcome to the Blogosphere . . . . . . to Jurisdynamics hosted by Jim Chen with contributions from Daniel A. Farber and J.B. Ruhl.

Posted by Lawrence Solum at 7/21/2006 10:00:00 AM

 
Bernstein on Lochner David Bernstein (George Mason University - School of Law) has posted Lochner v. New York: A Centennial Retrospective on SSRN. Here is the abstract:
    This Article discusses two aspects of Lochner's history that have not yet been adequately addressed by the scholarly literature on the case. Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court's invalidation of the law; and how to understand the Court's opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context. Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner was initially famous only because of Oliver Wendell Holmes's much-cited dissent. The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska and Pierce v. Society of Sisters as sound precedent. Meyer, in particular, eventually became an important basis for the Warren and Burger Courts' substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade. Critics of those opinions attacked the Court for following in Lochner's footsteps, and, with some significant help from Laurence Tribe's 1978 constitutional law treatise, Lochner came to represent an entire era and style of jurisprudence. Recently, the ghost of Lochner has been kept very much alive by Justices Kennedy, O'Connor, and Souter, each of whom has praised Meyer and Pierce as engaging in appropriately aggressive due process review of police power regulations, while straining to distinguish those opinions from Lochner. Meanwhile, a revival of limited government ideology on the legal right, most notably in the Rehnquist Court's federalism opinions has raised (perhaps exaggerated) fears on the legal left that the conservatives seek to return, in spirit if not in letter, to the discredited jurisprudence of the Lochner era. Yet virtually no one, on either the right or the left, challenges what may be the strongest evidence of Lochner's influence on modern jurisprudence: the Supreme Court's use of the Fourteenth Amendment's Due Process Clause to protect both enumerated and unenumerated individual rights against the states.

Posted by Lawrence Solum at 7/21/2006 07:08:00 AM

 
Appointments Chairs Over at Prawfsblawg, the comments to the post entitled Faculty Appointments Chairs provide a list of the chairs are various American law schools.

Posted by Lawrence Solum at 7/21/2006 07:04:00 AM

 
Barton on Teaching & Scholarship--and some comments! If you are a legal academic, you should probably read this.
Benjamin Barton (University of Tennessee, Knoxville - College of Law) has posted Is There a Correlation Between Scholarly Productivity, Scholarly Influence and Teaching Effectiveness in American Law Schools? An Empirical Study on SSRN. Here is the abstract:
    This empirical study attempts to answer an age-old debate in legal academia; whether scholarly productivity helps or hurts teaching. The study is of an unprecedented size and scope. It covers every tenured or tenure-track faculty member at 19 American law schools, a total of 623 professors. The study gathers four years of teaching evaluation data (calendar years 2000-03) and creates an index for teaching effectiveness. This index was then correlated against five different measures of research productivity. The first three measure each professor's productivity for the years 2000-03. These productivity measures include a raw count of publications and two weighted counts. The scholarly productivity measure weights scholarly books and top-20 or peer reviewed law review articles above casebooks, treatises or other publications. By comparison, the practice-oriented productivity measure weights casebooks, treatises and practitioner articles at the top of the scale. There are also two measures of scholarly influence. One is a lifetime citation count, and the other is a count of citations per year.
    These five measures of research productivity cover virtually any definition of research productivity. Combined with four years of teaching evaluation data the study provides a powerful measure of both sides of the teaching versus scholarship debate.
    The study correlates each of these five different research measures against the teaching evaluation index for all 623 professors, and each individual law school. The results are counter-intuitive: there is no correlation between teaching effectiveness and any of the five measures of research productivity. Given the breadth of the study, this finding is quite robust. The study should prove invaluable to anyone interested in the priorities of American law schools, and anyone interested in the interaction between scholarship and teaching in higher education.
And here is a bit more from the paper:
    The teaching evaluation data came in different forms for different institutions, from access to a university website that gathered the data, to a single page amalgamation, to physical copies of every student evaluation during the period. From these data I chose the question on the evaluation sheet that most closely measured teaching effectiveness. For example, the University of Tennessee form actually asks the students to rank the professor from 1-5 (with 5 being the highest ranking) on the “Instructor's effectiveness in teaching material.” The results can be found on a publicly accessible website (University of Tennessee 2006). Of the 19 schools, 13 schools asked a somewhat similar question and ranked the professor from 1-5. Two of the other schools ranked from 5-1 (with 1 being the best ranking), one ranked from 4-1 (again with 1 as the best), and one each ranked from 1-4, 1-7, and 1-9, with 1 being the lowest.
One more point--the study examines the correlation between global teaching effectiveness (across courses) and global scholarly productivity (across fields) and did not attempt to study correlations between writing that is salient to the course for which teaching effectiveness is being measure.
And one more issue--what about peer versus student evaluations. Again, a bit more from the paper:
    I also am aware that the use of teaching evaluations as a proxy for teaching effectiveness is somewhat controversial. There are studies, both within law schools and higher education in general, that show that teaching evaluations have biases, including biases based on race (Smith 1999), gender (Farley 1996), and even physical attractiveness (O’Reilly 1987). Other studies have shown that student teaching evaluations are positively correlated with other measures of teaching effectiveness, including peer reviews and output studies, suggesting at least that student measures track other alternative measures (Bok 2004). Many law faculty members have nevertheless argued to me that teaching evaluations are little more than a popularity contest. Some have even argued that teaching effectiveness is inversely correlated with teaching evaluations, since students tend to highly rank easy professors of little substance, while ranking professors who challenge them comparatively lower. For better or worse, I believe teacher evaluations are the only viable way to measure teaching effectiveness for a study of this breadth. My other choices were exceedingly unpalatable: 1) attempting to gather peer evaluation data, which is rarely if ever expressed numerically, and would also almost certainly not be provided by the host institutions; 2) some type of personal subjective measure of teaching effectiveness, potentially requiring me to personally visit classes and make my own call on teaching effectiveness.
At one level these results are completely unsurprising. What mechanism would result in a correlation between research productivity and teaching effectiveness? Here are some possibilities:
    --More research and more effective teaching might both be products of some underlying trait--such as diligence.
    More research might result in more knowledge, which might result in more effective teaching.
    More research might result in more knowledge, which might result in less effective teaching.
    More research might divert effort from teaching, which might result in less effective teaching.
And so forth.
It is possible, however, that some of these effects might be observed with a different research design. If it were possible to do reliable assessments of the objective accuracy of information conveyed and to compare that to research productivity in the particular field, for example, there might be some correlation between productivity and teaching effectivenss (in the objective sense). But that would not necessarily correlate with student ratings of teaching effectiveness? Why not? Because generally law students are incapable of evaluating "knowledge of the subject matter." For one thing, they lack a good baseline for comparison, because the truth is that the general level of knowledge of subject-mater among legal academics is fairly shallow. And a student rarely learns enough about a subject to actually get ahead of the professor. Of course, we all know that occasionally newbie professors get caught in gaffs--but most experienced teachers learn how to avoid this--which is mostly a matter of not saying things you don't know, not mastering the subject so deeply that you can answer any question about any point accurately.
But with that caveat aside, this is clearly valuable research! Highly recommended for all legal academics!
Thanks Lisa Fairfax to via Dan Markel.

Posted by Lawrence Solum at 7/21/2006 05:29:00 AM

Thursday, July 20, 2006
 
Thursday Calendar
    University of Arizona Law: Mona Hymel, Globalization, Environmental Justice, and Sustainable Development: The Case of Oil

Posted by Lawrence Solum at 7/20/2006 07:02:00 AM

 
Beta Version of the New Legal Theory Blog If you would like to see the new look of Legal Theory Blog, here is the URL: In addition, there is a new companion blog that will collect the Legal Theory Lexicon posts:During the "beta test," I will be requesting feedback on various design elements of the new version of the blog. I would greatly appreciate your assistance! Check out the new blog for the current set of issues!

This post will move to the top of the blog until the transition is complete.

Posted by Lawrence Solum at 7/20/2006 06:40:00 AM

Wednesday, July 19, 2006
 
Lemley on Terms of Use Mark A. Lemley (Stanford Law School) has posted Terms of Use on SSRN. Here is the abstract:
    Electronic contracting has experienced a sea change in the last decade. Ten years ago, courts required affirmative evidence of agreement to form a contract. No court had enforced a “shrinkwrap” license, much less treated a unilateral statement of preferences as a binding agreement. Today, by contrast, it seems widely (though not universally) accepted that if you write a document and call it a contract, courts will enforce it as a contract even if no one agrees to it. Every court to consider the issue has found “clickwrap” licenses, in which a user clicks “I agree” to standard form terms, enforceable. A majority of courts in the last ten years have enforced shrinkwrap licenses, on the theory that people agree to the terms by using the software they have already purchased. Finally, and more recently, an increasing number of courts have enforced “browsewrap” licenses, in which the user does not see the contract at all but in which the license terms provide that using a Web site constitutes agreement to a contract whether the user knows it or not. Collectively, we can call these agreements “terms of use” because they control (or purport to control) the circumstances under which buyers of software or visitors to a public Web site can make use of that software or site. The rise of terms of use has drawn a great deal of attention because of the mass-market nature of the resulting agreements. Terms of use are drafted with consumers or other small end users in mind. Commentators - myself among them - have focused on the impact of this new form of contract on consumers. But in the long run they may have their most significant impact not on consumers but on businesses. The law has paid some attention to the impact of terms of use on consumers. Virtually all of the cases that have refused to enforce a browsewrap license have done so in order to protect consumers; conversely, virtually all the cases that have enforced browsewrap licenses have done so against a commercial entity. And shrinkwrap and clickwrap cases, while enforcing some contracts against consumers, have protected those consumers against certain clauses considered unreasonable. Businesses, however, are presumed to know what they are doing when they access another company's Web site, so courts are more likely to bind them to that site's terms of use. Sophisticated economic entities are unlikely to persuade a court that a term is unconscionable. And because employees are agents whose acts bind the corporation, the proliferation of terms of use means that a large company is likely “agreeing” to dozens or even hundreds of different contracts every day, merely by using the Internet. And because no one ever reads those terms of use, those multiple contracts are likely to have a variety of different terms that create obligations inconsistent with each other and with the company's own terms of use. We have faced a situation like this before, decades ago. As business-to-business commerce became more common in the middle of the 20th Century, companies began putting standard contract terms on the back of their purchase orders and shipment invoices. When each side to a contract used such a form, courts had to confront the question of whose form controlled. After unsuccessful judicial experimentation with a variety of rules, the Uniform Commercial Code resolved this “battle of the forms” by adopting a compromise under which if the terms conflicted, neither party's terms became part of the contract unless the party demonstrated its willingness to forego the deal over it. Rather, the default rules of contract law applied where the parties' standard forms disagreed, but where neither party in fact insisted on those terms. I have three goals in this paper. First, I explain how courts came to enforce browsewrap licenses, at least in some cases. Second, I suggest that if browsewraps are to be enforceable at all, enforcement should be limited to the context in which it has so far occurred - against sophisticated commercial entities who are repeat players. Finally, I argue that even in that context the enforcement of browsewraps creates problems for common practice that need to be solved. Business-to-business (b2b) terms of use are the modern equivalent of the battle of the forms. We need a parallel solution to this “battle of the terms.” In Part I, I describe the development of the law to the point where assent is no longer even a nominal element of a contract. In Part II, I explain how the recent decisions concerning browsewrap licenses likely bind businesses but not consumers, and the problems that will create for commercial litigation. Finally, in Part III, I discuss possible ways to solve this coming problem and some broader implications the problem may have for browsewrap licenses generally.
Highly recommended.

Posted by Lawrence Solum at 7/19/2006 12:32:00 PM

 
Ibrahim on Director Liability and the Nature of the Board Darian Ibrahim (University of Arizona) has posted The Board as a Collective Body or a Collection of Individuals: Implications for Director Liability on SSRN. Here is the abstract:
    How should we conceive of a corporate board: as a collective body, or as a collection of individuals? And what practical consequences flow from our conception? The high-profile 'Disney' case, just decided by the Delaware Supreme Court, flagged a critical yet overlooked issue in corporate law that goes to the very heart of the board's nature. That is, when directors are sued for breaching their fiduciary duties, should courts determine their liability collectively, where all directors stand or fall together, or individually, where some directors may be liable but others not liable? This choice of assessment procedure can mean the difference between a director's liability and her exoneration, and thus carries significant financial implications for directors, shareholders, insurers, and attorneys. It may also deepen our understanding of the nature of boards on a theoretical level. Although 'Disney' flagged the choice of assessment approach as an issue, it did not adequately address it. Surprisingly, given the issue's interesting theoretical underpinnings and practical importance, neither has any other court or academic. Working from what is essentially a blank slate, this article proposes the criteria by which the whole board and individual director assessment approaches should be compared, and then applies those criteria to the three different types of fiduciary duties claims that shareholders can bring (assuming that after 'Disney', a "duty of good faith" exists in at least some form). It concludes with a split decision: by recommending that courts select the individual director approach in duty of loyalty and good faith cases, and the whole board approach in duty of care cases. For the most part, these recommendations track the limited case law on the issue. A collective/individual focus that shifts depending on context also reveals that, on a theoretical level, boards are properly conceived of as both collective bodies and a collection of individuals.

Posted by Lawrence Solum at 7/19/2006 12:25:00 PM

 
Wendesday Calendar
    University of Cincinnati Law: Ronna Schneider, Religion in the Public Schools

Posted by Lawrence Solum at 7/19/2006 12:22:00 PM

 
Nichols on Chinese Regulation of Religion Joel A. Nichols (Pepperdine University - School of Law) has posted Dual Lenses: Using Theology and Human Rights to Evaluate China's 2005 Regulations on Religion (Pepperdine Law Review, Vol. 34, 2006) on SSRN. Here is the abstract:
    In order for China to move forward in the international community, it needs to continue to improve its standing on human rights issues. Of particular concern to many observers is the relationship between the government and religion. While foreign religious organizations and missionaries are still heavily regulated by a 1994 law, a new law respecting religious citizens and organizations within China went into effect in 2005. This new law is salutary in some respects in that it provides a much fuller delineation of the relationship between government and religion within China, and it appears more solicitous toward religious rights than previous regulations. But the new law is very vague in places and contains several provisions that could be troublesome and problematic depending on how and whether they are implemented. This paper is primarily built on a lecture given at Fuller Theological Seminary in 2005. Its premise is that international human rights laws are a useful but not sufficient benchmark by which to assess China's law. It is also important to understand the theological premises of some of the religious communities and believers for a broader measure of the efficacy and fairness of China's law. By focusing upon and using these dual lenses of law and religion, the paper offers both preliminary assessments of the 2005 law and also some possible ways forward that will further China's efforts to respect its heritage while simultaneously allowing it to better align itself with prevailing international norms regarding religious rights and obligations.

Posted by Lawrence Solum at 7/19/2006 12:20:00 PM

Tuesday, July 18, 2006
 
Young Scholars and Empirical Research There is a thoughtful post entitled Should Young Scholars Engage in Empirical Legal Research? by Lisa Fairfax at Conglomerate. Here is a taste:
    I am at the SEALS annual conference and getting a chance to see some interesting panels as well as workshops for new law professors. One panel I attended focused on new developments in empirical legal research. Although the work in which people were engaged sounded interesting, each panelist asked the question, should young scholars engage in such research? The answer appeared to be no, with some qualifications. There were essentially four reasons why people responded no to the query.
Read the post. To add a bit. Very junior scholars without a solid foundation in empirical research methods should be wary--to say the least. Junior scholars ought to be exploiting their strengths, not starting over. Another important consideration is the prevalance of empirical scholarship on the senior faculty: as a rule of thumb, its better to do scholarship that is likely to be understood and valued by those who will be voting on one's tenure. But if you are trained in empirical methods and are on a faculty with tenured faculty who do empirical work, then I see no reason for juniors to shy away.

Posted by Lawrence Solum at 7/18/2006 11:16:00 AM

 
Hricik on Law Blogging David C. Hricik (Mercer University - Walter F. George School of Law) has posted Ethics of Blawging on SSRN. Here is the abstract:
    Addresses the legal ethical issues that face lawyers who blog (or blawg), including the potential for disclosure of client confidences, inadvertent formation of attorney-client relationships, and the unauthorized practice of law.

Posted by Lawrence Solum at 7/18/2006 06:38:00 AM

 
May on Chevron Randolph J. May (The Free State Foundation) has posted Defining Deference Down: Independent Agencies and Chevron Deference (Administrative Law Review, Vol. 58, p. 429, 2006) on SSRN. Here is the abstract:
    Surprisingly, although the rationale articulated in Chevron in support of the deference doctrine might suggest that independent agencies should receive less deference than executive branch agencies, the question has not been examined in the courts and it has received very little attention in the academic literature. This article begins that examination in the hope of spurring further commentary. In Part II below, the Article recounts Chevron and its rationale grounding the deference doctrine primarily (but not exclusively) in notions of political accountability inherent in constitutional separation of powers principles. Part III briefly examines the Supreme Court's recent Brand X decision to show how in that particular fact situation, involving a ruling of the FCC, a so-called independent agency, Chevron deference trumped stare decisis. In effect, this allowed the agency to alter the interpretation of a statutory provision that previously had been construed differently by an appellate court. Part IV sketches the skimpy scholarly literature that hints, in light of Chevron's political accountability rationale, that the decisions of independent regulatory agencies should receive less deference than those of executive branch agencies. Part V argues that there is considerable law and logic to support these heretofore underexplored, sparse suggestive comments. Since independent agencies such as the FCC are, as a matter of our current understanding of the law and of historical practice, mostly free from executive branch political control, Chevron's political accountability rationale should imply that statutory interpretations of independent agencies receive less judicial deference. In light of the peculiar constitutional status of the independent agencies, which often are referred to as the headless fourth branch, Part VI concludes with an explanation as to why a reconception of the Chevron doctrine, which would accord less judicial deference to the decisions of these agencies, is more consistent with our constitutional tradition than is the current conception.

Posted by Lawrence Solum at 7/18/2006 06:30:00 AM

 
Taslitz on the Subconscious and Rape Andrew E. Taslitz (Howard University - School of Law) has posted Forgetting Freud: The Courts' Fear of the Subconscious in Date Rape (and Other) Cases on SSRN. Here is the abstract:
    Trial and appellate courts are often very resistant to using the lessons of social science in crafting substantive criminal law and evidentiary doctrines. Using the courts' refusal to accept the teachings of cognitive scientists and forensic linguists in date rape cases as an example, this article argues that the courts misunderstand and fear the subconscious. They rely on a folk concept of the subconscious mind as sharply distinct from consciousness, inscrutable, frightening, and generally irrelevant to criminal responsibility because the healthy mind is one in which consciousness runs the show. Only in extreme cases of mental disease is the subconscious usually relevant, for it then manages to wrest control from the conscious mind. Subconscious processes can in these few extreme cases, such as with the insanity defense, exculpate but never inculpate. Relatedly, evidentiary doctrines display distrust of experts on the subconscious mind, resistance to the value of social scientific generalizations, confusion about the value of jury instructions, and a hesitancy to part with tradition. This article contrasts the folk subconscious with the scientifically-informed one. The scientific subconscious is a spectrum rather than half of a dichotomy (with consciousness being the other half). This subconscious interacts with consciousness in a reciprocal way in even the healthiest of minds. Some sorts of subconcious thoughts are accessible to consciousness in individual cases. Furthermore, even a person who does not know his subconscious mind can influence it by consciously gathering relevant information and altering his behavior, processes that over the long run change the subconscious to be closer to our conscious ideals. These insights have implications for substantive criminal law culpability doctrines and evidentiary ones that turn modern approaches on their head, holding persons responsible for all of who they are, at the subconscious and conscious levels alike, as the article details.
I must admit that I find this a bit puzzling. I should have thought that the lesson of contemporary cognitive science is that consciousness is both (1) poorly understood and therefore not well theorized as a causal influence and (2) only one of a very large complex of "modules" that interact to determine human behavior. Of course, this is not the classic Freudian picture--not by miles. A fascinating topic.

Posted by Lawrence Solum at 7/18/2006 06:24:00 AM

 
Sachs on Nuclear Waste Storage and the Mescalero Apaches Noah Sachs (University of Richmond School of Law) has posted The Mescalero Apache and Monitored Retrievable Storage of Spent Nuclear Fuel: A Study in Environmental Ethics (Natural Resources Journal, Vol. 36, p. 641, 1996) on SSRN. Here is the abstract:
    The proposal of the Mescalero Apache Indians to host a nuclear waste storage facility raised difficult questions about political sovereignty, environmental justice, and democratic consent. While the proposal had numerous drawbacks and deserved to be opposed, many of the arguments used against it were conceptually flawed and paternalistic. Arguments decrying bribery of a poor community were particularly weak, while those criticizing targeting of Indian tribes by the United States government and coercion of tribal membners by the Mescalero leadership had more merit. The core ethical arguments should be separated from the rhetoric so that policy makers, Native Americans, environmentalists, and industry leaders can better evaluate similar projects in the future.

Posted by Lawrence Solum at 7/18/2006 06:21:00 AM

 
Berners-Lee on Net Neutrality Tim Berners-Lee has an excellent post on Net Neutrality. Here's a taste:
    Net neutrality is this:
      If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level.
    That's all. Its up to the ISPs to make sure they interoperate so that that happens. Net Neutrality is NOT asking for the internet for free. Net Neutrality is NOT saying that one shouldn't pay more money for high quality of service. We always have, and we always will.
My take on Net Neutrality can be found in The Layers Principle: Internet Architecture and the Law, with Minn Chung.

Posted by Lawrence Solum at 7/18/2006 06:12:00 AM

Monday, July 17, 2006
 
Meese on Monopolization and the Theory of the Firm Alan J. Meese (College of William and Mary) has posted Monopolization, Exclusion and the Theory of the Firm (Minnesota Law Review, Vol. 89, 2005) on SSRN. Here is the abstract:
    This article examines and critiques the distinction that courts currently draw under Section 2 of the Sherman Act between “competition on the merits,” on the one hand, and contractual exclusion, on the other. The article finds the source of this distinction in neoclassical price theory, its theory of the firm, and the derivative model of “workable competition” that most economists embraced from about 1940 onward. Workable competition, it is shown, privileged property-based, “unilateral” technological competition by a fully-integrated firm over “concerted” non-standard agreements, i.e., partial integration. Various antitrust scholars embraced workable competition as a proper guide to antitrust policy, endorsing the distinction between “competition on the merits,” on the one hand, and contractual exclusion, on the other, and the distinction found its way into modern law in United States v. United Shoe Machinery Co., 110 F. Supp. 295 (D. Mass. 1953), aff'd United Shoe Machinery v. United States, 347 U.S. 521 (1954) (per curiam). Moreover, the distinction survives to this day. “Competition on the merits” by a monopolist is lawful per se, even if such conduct completely excludes rivals from the market and regardless of the conduct's ultimate impact on consumers. By contrast, exclusionary agreements that hamper rivals in a non-trivial way are presumptively unlawful and only survive if a court believes they are the least restrictive means of producing significant benefits. Transaction cost economics (TCE), offers a competing theory of the firm as well as a new and benign interpretation of partial integration in the form of various non-standard contracts. In particular, TCE undermines price theory's conclusion that single-firm conduct produces special technological benefits that partial integration cannot produce. Instead, TCE shows that technological considerations cannot explain complete integration, and that both complete and partial integration can be methods of reducing the transaction costs that reliance upon the market would otherwise entail. Because both complete and partial integration can produce significant benefits, there is no reason to privilege one form of integration over the other. As a result, courts should relax the intrusive scrutiny they currently apply to exclusionary agreements entered by monopolists.

Posted by Lawrence Solum at 7/17/2006 03:52:00 AM

 
Brooks on Hegal on Monarchy Thom Brooks (University of Newcastle upon Tyne (UK)) has posted No Rubber Stamp: Hegel's Constitutional Monarch. Here is the abstract:
    Perhaps one of the most controversial aspects of Hegel's Philosophy of Right for contemporary interpreters is its discussion of the constitutional monarch. This is true despite the general agreement amongst virtually all interpreters that Hegel's monarch is no more powerful than modern constitutional monarchies and is an institution worthy of little attention or concern. In this article, I will examine whether or not it matters who is the monarch and what domestic and foreign powers he has. I argue against the virtual consensus of recent interpreters that Hegel's monarch is far more powerful than has been understood previously. In part, Hegel's monarch is perhaps even more powerful than Hegel himself may have realised and I will demonstrate certain inconsistencies with some of his claims. My reading represents a distinctive break from the virtual consensus, without endorsing the view that Hegel was a totalitarian.

Posted by Lawrence Solum at 7/17/2006 03:46:00 AM

 
Matwyshyn on Spam Andrea M. Matwyshyn (University of Florida) has posted Penetrating the Zombie Collective: Spam as an International Security Issue (SCRIPT-ed, Vol. 4, 2006) on SSRN. Here is the abstract:
    Since the mid 1990's, spam has been legally analyzed primarily as an issue of balancing commercial speech with consumers' privacy. This calculus must now be revised. The possible deleterious consequences of a piece of spam go beyond inconvenient speech and privacy invasion; spam variants such as phishing and “malspam” (spam that exploits security vulnerabilities) now result in large-scale identity theft and remote compromise of user machines. The severity of the spam problem requires analyzing spam foremost as an international security issue, expanding the debate to include the dynamic impact of spam on individual countries' economies and the international system as a whole. Spam creation is becoming a flourishing competitive international industry, generating a new race to the bottom that will continue to escalate. Although the majority of spammers reside in the United States and a majority of spam appears to originate in the U.S., spam production is being increasingly outsourced to other countries by U.S. spammers. Similarly, as U.S. authorities begin to prosecute, spammers are moving offshore to less regulated countries. Therefore, spam presents an international security collective action problem requiring legislative action throughout the international system. A paradigm shift on the national and international level is required to forge an effective international spam regulatory regime. Spam regulation should be contemplated in tandem with the development of computer intrusion legislation and privacy legislation, harmonizing all three simultaneously across the international system to form a coherent international data control regime.

Posted by Lawrence Solum at 7/17/2006 03:42:00 AM

 
Tehranian on Middle-Eastern Legal Scholarship John Tehranian (University of Utah - S.J. Quinney College of Law) has posted Whitewashed: Towards a Middle-Eastern Legal Scholarship (Indiana Law Journal, Vol. 82) on SSRN. Here is the abstract:
    This Article examines the antinomy of middle-eastern legal and racial classification. Individuals of middle-eastern descent are caught in a catch-22. Through a bizarre fiction, the state has adopted the uniform classification of all individuals of middle-eastern descent as white. On paper, therefore, they appear no different than the blue-eyed, blonde-haired individual of Scandinavian descent. Yet reality does not mesh with this bureaucratic position. On the street, individuals of middle-eastern descent suffer from the types of discrimination and racial animus endured by recognized minority groups. The dualistic and contested ontology of the middle-eastern racial condition therefore creates an unusual paradox. Reified as the other, individuals of middle-eastern descent do not enjoy the benefits of white privilege. Yet, as white under the law, they are denied the fruits of remedial action. Moreover, the state's racial fiction fosters an invisibility that perniciously enables the perpetuation and even expansion of discriminatory conduct, both privately and by the state, against individuals of middle-eastern descent. Indeed, unlike virtually every other racial minority in our country, middle easterners have faced rising, rather than diminishing, degrees of discrimination over time—a trend epitomized by recent targeted immigration policies, racial profiling, a war on terrorism with a decided racialist bent, and growing rates of job discrimination and hate crime. By tracing the chilling reproblematization of the middle easterner from friendly foreigner to enemy alien, enemy alien to enemy race, this Article argues that the modern civil rights movement has not done enough to advance the freedoms of those of middle-eastern descent. Finally, the Article critiques the extant literature in critical race theory for ignoring issues of concern to individuals of middle-eastern descent. Specifically, the legal academy must launch a dialogue, in both its law review literature and the classroom, on the particular problems facing the middle-eastern population, especially in the post-9/11 environment. A central tenet of this plea is a re-examination in what we—as a society and as scholars—count as diversity. The Article therefore takes a simple, though radical, step: calling for the development of a middle-eastern critical legal scholarship.

Posted by Lawrence Solum at 7/17/2006 03:38:00 AM

Sunday, July 16, 2006
 
Legal Theory Calendar
    Wednesday, July 19
      University of Cincinnati Law: Ronna Schneider, Religion in the Public Schools
    Thursday, July 20
      University of Arizona Law: Mona Hymel, Globalization, Environmental Justice, and Sustainable Development: The Case of Oil

Posted by Lawrence Solum at 7/16/2006 09:18:00 PM

 
Callfor Papers: Canadian Legal Education Annual Review
    CALL FOR PAPERS 1ST (2007) ISSUE OF THE CANADIAN LEGAL EDUCATION ANNUAL REVIEW (CLEAR) The Canadian Legal Education Annual Review is a peer-reviewed annual publication of the Canadian Association of Law Teachers (CALT). The aim of the journal is to foster scholarly exchanges on issues related to legal education and relevant to all Canadian law professors, graduate students and those who teach law. In particular, the journal aims to encourage critical and scholarly reflections on the aspirations, goals, objectives, values and cultures of legal education and on the processes involved in law teaching . CLEAR welcomes submissions dealing with current issues and problems in legal education, presenting empirical studies on legal education and action research projects carried out by professors, examining new trends in adult education or new methods of instruction (including but not limited to learning technologies), and discussing faculty or university reports dealing with issues such as curricular reforms and access to legal education. In addition, the CLEAR welcomes other pieces such as personal stories and reviews of books and other media. CLEAR welcomes and encourages submissions in both English and French. Please send your manuscripts as e-mail attachments in Microsoft Word format to clear.raedc@mac.com. All manuscripts must follow the Canadian Guide to Legal Citation. Manuscripts must be sent by October 31st, 2006 for publication in the 2007 issue, which will be published in time for the annual conference of the Canadian Association of Law Teachers in June 2007.

Posted by Lawrence Solum at 7/16/2006 08:57:00 AM

 
Legal Theory Lexicon: Libertarian Theories of Law
    Introduction The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. There is, however, a counter-tradition in legal theory that challenges the legitimacy of law and contends that the role of law should be narrowly confined. This entry in the Legal Theory Lexicon will examine libertarian theories of law. As always, the Lexicon is aimed at law students—especially first year law students—with an interest in legal theory.
    The libertarian tradition of social, political, and legal thought is rich and varied, no brief summary can do it justice. So the usual caveats apply. This is a brief introduction to libertarian thought with an emphasis on its role in normative legal theory. Debates about the true meaning of the term “libertarian” will largely be ignored, and will disputes over the advantages of “liberalism,” “classical liberalism,” and “libertarianism” as the best label for libertarian ideas. Enough with the caveats, here we go!
    Historical Roots of Contemporary Libertarianism One good way to approach contemporary libertarian legal theory is via its historical roots. A good place to begin is with John Locke’s conception of the social contract.
      John Locke and the Social Contract The idea of a “social contract,” by which individuals in a state of nature contract with each other (or with a sovereign) to enter a “civil society” is one of the most important in all of political philosophy. Hobbes, Rousseau, and Locke all have distinctive theories of the social contract, but Locke’s version is important—both to libertarian theory and American constitutionalism. For the purposes of this discussion, the important idea is that a legitimate (or perhaps just) civil society has authority that is limited to those powers that the citizens-to-be would agree to delegate to the government in a social contract. Locke himself argued that the inconveniences of the state of nature would motivate a social contract that delegated to the government the power to protect property—understood in a broad sense that encompasses personal security and liberty—and the power to resolve disputes. But the Lockean social contract would not authorize government to restrict fundamental liberties or to take property from one citizen and transfer it to another. Of course, there is much more to day about Locke, but we are concerned here only with getting the gist of those Lockean ideas that are historically important to libertarian theory. Kant and Spheres of Autonomy Kant also made an important contribution to libertarian theory via his ideas of autonomy. There is no good way to summarize Kant’s theory of autonomy in a sentence or two, but the gist of his notion is the humans, as rational beings, have an interest in being autonomous in the sense of “self governing.” The role of law is to protect individual “spheres of autonomy” or “zones of liberty” in which individuals can act without interference from others. Suppose then, that our theory of proper legislation was that the laws should create maximum equal liberties for each, consistent with the same liberty for all. These two Kantian ideas—autonomy and maximum equal liberty—have played an important role in libertarian thinking about law.
      John Stuart Mill and the Harm Principle John Stuart Mill was a liberal utilitarian, and so, in a sense, it is odd that he is also the author of one of the most important works in the libertarian tradition, On Liberty, a rich, complex, and easily misunderstood work. I am afraid I may be contributing to the misunderstanding by emphasizing just one idea from On Liberty--the so-called “harm principle.” Here is how Mill states the principle:
        . . . the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right...The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
      The harm principle is almost as controversial as it famous. In particular, there is a persistent worry about the problem of the baseline against which “harm” as opposed to “lack of advantage” might be measured.
    Theoretical Foundations of Libertarianism This very brief introduction to the historical roots of libertarianism in Locke, Kant, and Mill prepares the way for a discussion of the theoretical roots of libertarian legal theory. Libertarianism operates at the level of political theory: it is a view about questions like “What is the proper role of government?” and “When is coercive legislation legitimate?” Theories at this level of abstraction need foundations of some sort, either deep foundations in comprehensive moral theories like utilitarianism or shallow foundations that explain why deeper foundations are unnecessary. Let’s take a look at both sorts of foundations for libertarian legal theories.
      Consequentialist Foundations The consequentialist case for libertarianism is contingent—it depends on empirical and theoretical questions about the effects that various legal regimes have. Consequentialist libertarians believe that minimum government interference with individual liberty and free markets produces better consequences that extensive government regulation or redistribution of income. Historically, both John Stuart Mill and Adam Smith are associated with both libertarianism and consequentialism.
      There are many different flavors of consequentialism, but in the legal academy, the most prominent strands of consequentialist thinking are associated with law and economics and assume a preference-satisfaction (or “welfarist”) notion of utility. Even among theorists who accept welfarism, there are major disagreements about how much and when government should regulate. But the general idea behind the consequentialist case for libertarianism is that markets are more efficient than regulation. This conclusion follows from fairly straightforward ideas in neoclassical microeconomics. Markets facilitate Pareto-efficient (welfare enhancing) transactions; regulations thwart such transactions.
      Markets may lead to substantial disparities in wealth and income, but from the consequentialist perspective, such inequalities may not justify legislation that redistributes wealth and income. First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor. Of course, there is a well-known utilitarian argument for the redistribution of wealth and income based on the idea of diminishing marginal utility, but this argument might be outweighed by the massive utility losses caused by redistributive programs—providing a utilitarian argument against government-mandated redistribution of wealth and income. Second, even consequentialists who believe in some form of egalitarianism might believe that the worst off members of society will be better served by a libertarian regime than by a social-welfare state. We are already on a tangent, so I’m going to leave the topic of redistribution—noting that this is an issue upon which consequentialists themselves many differ in a variety of ways.
      In contemporary legal theory, Richard Epstein is the “libertarian” thinker who is most strongly associated with consequentialist foundations. Because he is a consequentialist, Epstein may not be a pure libertarian, but on a variety of issues (e.g. antidiscrimination laws), Epstein takes strongly libertarian positions.
      Deontological Foundations Although some libertarians are consequentialists, many others look to deontological moral theory for the foundations of their libertarianism. There are many different strategies for arguing for libertarianism based on deontological premises. One method starts with the idea of self-ownership or autonomy. Each of us has a moral right to control our own bodies, free of wrongful interference by others. This might imply that each individual has a right against theft, battery, false-imprisonment, enslavement, and so forth. Of course, these rights might justify a certain kind of government—one that protects us against invasions of our rights. But when government goes beyond the protection of these rights, then government itself operates through force or threats of force. For example, the redistribution of income might be accomplished by taxing income to finance a welfare system. Taxes are not voluntary; tax payments are “coerced” via threats of violence and imprisonment. Without consent, it might be argued, these threats are wrongful actions.
      In my mind, the deontological approach to the foundations of libertarian political theory is most strongly associated with the late Robert Nozick and his magnificent book, Anarchy, State, and Utopia (see reference below).
      Pluralist Foundations There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.
      One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- have good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.
    Libertarian Agendas for Legal Reform (or Revolution!) Even thought this is “Legal Theory Blog,” we should say something about the practical agendas of various libertarian legal theories. Let’s begin with modest libertarianism and proceed to its most radical (anarchist) forms.
      Modest Libertarian Reforms: Deregulation, Privatization, and Legalization At the very least, libertarians favor less government—as measured against the baseline of the current legal order in the United States. So, libertarians are likely to be in favor of more reliance on markets and less reliance on government. Hence, libertarians are likely to support programs of deregulation and privatization. Deregulation might include measures like abolition of consumer product safety regulations and the elimination of rent control laws. Privatization might include the federal government selling off the national park system or the Tennessee Valley Authority.
      A libertarian reform agenda might also include the legalization of various forms of conduct that are currently prohibited. Examples of this kind of reform might include the legalization of recreational drugs, the end of prohibitions on various consensual sexual activities, and the elimination of restrictions on gambling and prostitution.
      Comprehensive Libertarian Reform: The Night-Watchman State A more ambitious libertarian agenda might be the establishment of what has been called the night-watchman state. The idea is that government would limit its role to the protection of individual liberty. Government would continue to provide police protection, national defense, and a court system for the vindication of private rights (property, tort, and contract rights, for example), but nothing else. In other words, the function of law would be limited to those activities that are necessary for the protection of private property and liberty.
      The difference between the advocacy of modest and comprehensive libertarian reform may be more a matter of tactics than of principle. One might believe that there is no realistic chance of a transition to a night-watchman state. Those who advocate such comprehensive reform may undermine their own political effectiveness by sounding “radical.” So as a matter of practical politics, it may be that libertarians are most effective when they advocate marginal reforms that move the system incremental in libertarian directions.
      Libertarian Revolutions: Anarchy and Polycentric Constitutional Orders Some libertarians advocate an agenda that is even more radical than the night-watchman state. One might question whether there is a need for the nation state at all. One version of this more radical approach is pure anarchism—the view that no government is necessary because individuals can coexist and cooperate without any need for state action. Another variation of this idea is sometimes called a “polycentric constitutional order.” The idea is that individuals could subscribe to private firms that would provide the police and adjudication functions of the night watchman state. Such a society would have entities that functioned like governments in some ways—with the important exception that individuals would enter into voluntary agreements for their services.
    The Rivals of Libertarian Legal Theory Libertarian theory can be criticized in a variety of ways. Sometimes the disagreement is mostly empirical: libertarians believe that life without the state would be better, and anti-libertarians believe it would be worse. But sometimes the critics of libertarianism have a radically different vision of the fundamental purposes of government. One such rival is egalitarianism—the view the distributive justice requires that goods (let’s leave the definition of good at the abstract level) should be divided equally, and that the creation of social equality is the primary aim of government. Some libertarians might accept this goal, but argue that maximum liberty is the best way to achieve it. Other libertarians might argue that liberty is the good that should be equally divided. But many libertarians see equality as the wrong goal for government. That is, sometimes libertarians and egalitarians differ fundamentally over the purpose of government.
    Another rival to libertarianism is the view that legislation should aim at the promotion of virtue in the citizenry. If one believes that the aim of government is to make humans into better people, then one is likely to see a variety of restricts of liberty as justified. (Let’s call views that see virtue as the end of government “aretaic political theories.”)
    Aretaic political theorists are likely to disagree with libertarians over what might be called “moral legislation.” For instance, one might believe that legal prohibitions on gambling, drugs, and prostitution are justified because they help promote a moral climate where most citizens don’t want to engage in these activities. Many libertarians would say it is simply not the business of government to decide that a taste for gambling is a bad thing; whereas many virtue theorists are likely to say that this is precisely the sort of work that governments should be doing.
    Conclusion Libertarian legal theory is interesting on the merits—as one of the most significant normative theories of law. But there is another important reason for legal theorists to be interested in libertarianism even if they ultimately reject it. Libertarian legal theories call into question the very purpose of law and government. A really careful evaluation of libertarianism requires that one form views about the function of law and the purposes of government, and to confront a variety of criticisms of conventional views about those topics. For that reason, thinking about libertarian legal theory is an excellent way of thinking about the most fundamental questions in normative legal theory.
    Once again, this entry is bit too long, but I hope that I’ve provide a good starting point for your investigations of libertarianism. I’ve provided a very brief set of references for further exploration.
    References

Posted by Lawrence Solum at 7/16/2006 08:00:00 AM

Saturday, July 15, 2006
 
Download of the Week The Download of the Week is Habermas's Call for Cosmpolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal by Michel Rosenfeld. Here is the abstract:
    In recent work, Habermas has provided a critical account of the trend towards transnational government and global governance in terms of his conception of communicative action and his discourse theory of law and ethics expanding on his contribution in BETWEEN FACTS AND NORMS (Eng. Trans. 1996). Moreover, Habermas has also recently tackled global terrorism and evaluated it in terms of modernism and the continued viability of the Enlightenment project. Habermas does tie economic globalization and global terrorism, but does not believe that the latter is ultimately a manifestation of a clash of cultures. Instead Habermas regards global terrorism as an economically based reaction to the gross inequities perpetrated by globalization. Accordingly, Habermas regards global terrorism as arising from a breakdown of communication and as only amounting to an external threat to modernism. The article takes a critical look at Habermas's analysis and at his suggestion that the solution to the problem lies with expansion of the constitutional order beyond the nation-state through promotion of a cosmopolitan constitutional patriotism. Taking a pluralistic perspective, the article questions several of Habermas's assumptions and conclusions.

Posted by Lawrence Solum at 7/15/2006 12:44:00 PM

 
Legal Theory Bookworm The Legal Theory Bookworm recommends The Judge in a Democracy by Aharon Barak. Here's a blurb:
    Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.

Posted by Lawrence Solum at 7/15/2006 12:42:00 PM

Friday, July 14, 2006
 
Brown on Plea Bargaining and Regulation of Defense Counsel Darryl K. Brown (Washington and Lee University - School of Law) has posted Executive-Branch Regulation of Criminal Defense Counsel and the Private Contract Limit on Prosecutor Bargaining on SSRN. Here is the abstract:
    Criminal defendants' right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors' power to veto defendants' choices to share attorneys with other suspects. The organizing concern for regulation of counsel is not simply fairness, but also accuracy and a less noted goal - effectiveness of criminal law enforcement. Defense counsel is best understood not solely in light of defendant's interests but also of systemic ones. That gives the executive branch has a stronger claim to competence in regulating counsel. But regulation works best when the regulator is institutionally well suited to the task, and one feature that makes an actor well suited is supervision or some other check by another actor. By those criteria, much executive-branch regulation of defense counsel is acceptable, because prosecutors either need the consent of Congress or the judiciary, or - in the case of privilege waivers - must face well-funded counsel in negotiation. But bargaining to end attorneys' fee payments to some defendants is different. That policy gives prosecutors power unchecked by legislatures and courts or even the capable opposition of a well-funded opponent. The Supreme Court has left little doctrinal basis for restricting prosecutors' bargaining incentives for defendant cooperation. Yet this essay explains how firms themselves, through private contract, can take much of the sting out of prosecutors' abilities to demand nonpayment of attorneys' fees. Further, as they do so, courts are likely to be receptive to a narrow constitutional doctrine that leaves current plea bargaining law in place but still bars prosecutorial incentives for firms to breach duties to pay fees. Courts and defendants can work within Supreme Court doctrine to limit prosecutors by grounding those limits in the protection of contract obligations as much as the right to counsel.

Posted by Lawrence Solum at 7/14/2006 12:31:00 PM

 
Gotanda on Transnational Contract Damages John Y. Gotanda (Villanova University School of Law) has posted Damages in Lieu of Performance Because of Damages in Lieu of Performance Because of Breach of Contract (Villanova Law/Public Policy Research Paper No. 2006-8, DAMAGES IN PRIVATE INTERNATIONAL LAW, Hague Academy of International Law, 2007) on SSRN. Here is the abstract:
    In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent's failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance. Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant's performance interest by giving the claimant the substitute remedy of the "benefit of the bargain" monetarily. This typically includes compensation for actual loss incurred as a result of the breach and for net gains, including lost profits, that the claimant was precluded from because of the respondent's actions. All legal systems place limitations on damage awards. The most common limitations are causation, foreseeability, certainty, fault, and avoidability. In order to obtain damages, there must be a causal connection between the respondent's breach and the claimant's loss. In addition, the claimant must show that the loss was foreseeable or not too remote. Further, the claimant is required to show with reasonable certainty the amount of the damage. Many civil law countries also require, as a prerequisite to an award of damages for breach of contract, that the respondent be at fault in breaching the agreement. Damages may also be limited by the doctrine of avoidability, which provides that damages which could have been avoided without undue risk, burden, or humiliation are not recoverable. The rules concerning damages for breach of contract are complex and vary greatly from country to country. Furthermore, in some federal countries, such as the United States and Canada, the applicable rules differ among states and provinces. This chapter, which is part of a comprehensive study of the awarding of damages in private international law, focuses on the general rules concerning damages awarded in lieu of performance because of a breach of contract ("performance damages"). It begins with an overview of the purposes served by awarding damages. It then examines performance damages for breach of contract in common law and civil law countries. The study subsequently analyzes the awarding of damages under the Convention on the International Sale of Goods (CISG), general principles of law, and principles of equity and fairness.

Posted by Lawrence Solum at 7/14/2006 12:20:00 PM

 
Rosenfeld on Habermas on Patriotism Michel Rosenfeld (Cardozo Law School) has posted Habermas's Call for Cosmpolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal on SSRN. Here is the abstract:
    In recent work, Habermas has provided a critical account of the trend towards transnational government and global governance in terms of his conception of communicative action and his discourse theory of law and ethics expanding on his contribution in BETWEEN FACTS AND NORMS (Eng. Trans. 1996). Moreover, Habermas has also recently tackled global terrorism and evaluated it in terms of modernism and the continued viability of the Enlightenment project. Habermas does tie economic globalization and global terrorism, but does not believe that the latter is ultimately a manifestation of a clash of cultures. Instead Habermas regards global terrorism as an economically based reaction to the gross inequities perpetrated by globalization. Accordingly, Habermas regards global terrorism as arising from a breakdown of communication and as only amounting to an external threat to modernism. The article takes a critical look at Habermas's analysis and at his suggestion that the solution to the problem lies with expansion of the constitutional order beyond the nation-state through promotion of a cosmopolitan constitutional patriotism. Taking a pluralistic perspective, the article questions several of Habermas's assumptions and conclusions.

Posted by Lawrence Solum at 7/14/2006 11:41:00 AM

 
Somin on Raich Ilya Somin (George Mason University - School of Law) has posted Gonzales v. Raich: Federalism as a Casualty of the War on Drugs (Cornell Journal of Law and Public Policy, Symposium on the War on Drugs, June 2006) on SSRN. Here is the Abstract:
    The Supreme Court's recent decision in Gonzales v. Raich marks a watershed moment in the development of judicial federalism. If it has not quite put an end to the Rehnquist Court's "federalism revolution," it certainly represents a major step in that direction. In this Article, I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers. Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of "economic activity" thereby ensuring that virtually any activity can be "aggregated" to produce the "substantial affect [on] interstate commerce" required to legitimate congressional regulation under Lopez v. United States and Morrison v. United States; by making it easier for Congress to impose controls on even "noneconomic" activity by claiming that it is part of a broader "regulatory scheme"; and finally, by restoring the so-called "rational basis" test, holding that "[w]e need not determine whether [defendants'] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding." The Supreme Court's recent seemingly pro-federalism decisions in Gonzales v. Oregon and Rapanos v. Army Corps of Engineers actually do little or nothing to mitigate the impact of Raich. I also contend that the Raich decision is misguided on both textual and structural grounds. The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents. Raich's undercutting of federalism by upholding the power of Congress to ban the possession of homegrown medical marijuana closely parallels legal developments during the Prohibition era of the 1920s. In both periods, the establishment of a nationwide prohibition regime greatly eroded decentralized federalism, in part because the Supreme Court accepted the government's claims that the power to regulate a market in prohibited substances necessarily required comprehensive regulation of virtually all sale or possession of the commodities in question. The future of judicial federalism may depend not just on the precise doctrinal impact of Raich, but on the possibility that liberal jurists and political activists may come to recognize that they have an interest in limiting congressional power. A cross-ideological coalition for judicial enforcement of federalism would be far more formidable than today's narrow alliance between some conservatives and libertarians. Ironically, the Raich decision, in combination with other recent developments, may help bring about such a result.

Posted by Lawrence Solum at 7/14/2006 11:35:00 AM

Thursday, July 13, 2006
 
Yet More on Teaching and Scholarship Orin Kerr has a very good post entitled Legal Scholarship and "the Canon" at OrinKerr.com, which quite properly questions the empirical foundation for my claim that immersion in the canon--which is required of younger teachers--leads to a parallel immersions in canon-focused scholarship. Also, Peter Spiro has a post entitled International Legal Scholarship and the Lack of a Canon, in which he observes that not all fields of law have a canon, and makes the further claim that there is no canon in international law:
    There isn't a canon in international law, or at least it's a very thin one (or alternatively a thick one under impossible and obvious stress), and it means that anything goes. Teaching can't help but be a plus in that case, because you get the raw materials without the strictures of received wisdom. Teaching IL almost begs the teacher to come up with her own organizing principle; it forces you to think from scratch. And where there's less of a canon, it's less likely that there are powerful individuals who have a vested interest in it and who are looking to enforce orthodoxies through appointments and tenure decisions. This also allows for more imaginative and foundational scholarship (in a way that does have generational implications).
What a marvelous and hopeful thought! It actually makes me want to work in IL! And I must admit that I was thinking of the core of the law school currciulum--subjects like contracts, property, procedure, constitutional law, administrative law, tax, etc.--when I asserted that intensive preparation for teaching focuses one on the "canon."
Read Kerr and Spiro!

Posted by Lawrence Solum at 7/13/2006 12:32:00 PM

Wednesday, July 12, 2006
 
More from Buck on Teaching and Scholarship Stuart Buck replies to my post prompted by his Teaching vs. Scholarship. I agree with almost everything in Buck's most recent post, but I wanted to say a few more words about the larger topic: Is teaching in competition with scholarship? Or a they complimentary?
This issue is usually framed somewhat simplistically. Back in the day, the lay of the land might have been appoximately as follows:
    At elite research-oriented law schools, the question would rarely arise. It was assumed that research was important, whether or not it competed with teaching. At most other law schools, where the emphasis was more on professional education, many faculty members believed that time spent on research detracted from teaching, and hence, that a lack of scholarly productivity was a sign of virute and not of vice.
More recently, the landscape has changed--especially as the imperative for scholarly activity has spread throughout the legal academy. Not too long ago, there was a debate at many law schools that went like this:
    Older faculty member: too much emphasis on scholarship will hurt our student. Younger faculty member: the best scholars are also the best teachers; so, a lack of scholarly productivity will hurt our students.
But recently the nature of the debate seems to be shifting. One reason for the shift is the change in the nature of legal scholarship brought about by the growth of interdisciplinarity in the legal academy. When legal scholars were focused on doctrine, the case for complimentarity between teaching and scholarship was easily made. Who could doubt that the author of a leading treatise was immersed in the law in a way that could be useful in the classroom? (Setting aside the "over their heads" problem, for a moment.) But in the era of interdisciplinary research, the connection between scholarship and teaching is more complicated. The most sophisticated work in law and economics, empirical legal studies, law and philosophy, and legal history is not necessarily focused on doctrine. One symptom of this transformation is the decline of the treatise as a form of legal scholarship. Fifty years ago, the great treatise writers were at the pinnacle of the profession. Today, it is not clear that writing a treatise is even a mild positive for an ambitious legal scholar; many would go further and say that treatise writing is a sign of serious scholarly dysfunction and constitutes a significant negative factor. (Of course, many would disagree.) But this shift has changed the terms of the debate. The typical doctrinal course can be supplemented by interdisciplinary perspectives of various sorts, but most law school courses still have legal doctrine (understanding of the system of rules and principles) as their primary focus. Sophisticated interdisciplinary work in many cases takes the scholar away from the internal point of view--the perspective of practising lawyers and judges. This creates a tension between scholarship and teaching that is quite different from the simple competition for preparation time.
I could go on and one. I really am not arguing for any conclusion here. My point is really just that the terms of the debate have changed.

Posted by Lawrence Solum at 7/12/2006 10:45:00 AM

Tuesday, July 11, 2006
 
Buck on Teaching versus Scholarship Stuart Buck has a post on the old chestnut, the question whether scholarship interferes with or enhances teaching--in the context of legal education. One of Buck's points is that teaching may actually enhance scholarship:
    Why is this? For one simple reason: No matter how intensely you study a particular subject, if time goes by without regular review, it's easy for the details to slip from your memory. But teaching a course inherently requires regular review -- not just of your own scholarship on a given subject, but of everything else that is relevant to that subject. If you're going to stand in front of a group of people and explain a particular legal subject, you have to know the ins and outs of all the important cases/statutes/commentary. It's not enough to know this stuff "on paper" -- you have to know it stone cold, so that you can answer practically any question that students might throw your way. What's more, you have to know the subject well enough to explain it to beginners. I think that this requires more in-depth knowledge than merely being able to converse with other "experts." When you're talking to beginners, you have to understand the topic well enough to boil it down to the basics. You can't get away with casually referring to some abstraction on the assumption that everyone else will know what you're talking about.
There is something to Buck's theory, but I want to suggest some qualifications:
  • Buck writes, "[T]eaching a course inherently requires regular review -- not just of your own scholarship on a given subject, but of everything else that is relevant to that subject." "Requires" is a bit strong. Lot's of popular and fairly effective teachers barely review the material in the casebook--much less "everything else that is relevant." The truth is that the gap between students and an experienced teacher is so enormous that there is a real danger of "knowing too much." That's why neophyte teachers who are just learning a new subject can be very effective--they are less prone to teach "over the heads" of their students.
  • Buck writes, "It's not enough to know this stuff "on paper" -- you have to know it stone cold, so that you can answer practically any question that students might throw your way." Hardly anyone knows their subject "stone cold," especially these days when very few law professors are treatise writers. Buck's view is wildly romantic.
  • Burck writes, "you have to know the subject well enough to explain it to beginners. I think that this requires more in-depth knowledge than merely being able to converse with other 'experts.'" This is simply false. It is at least as accurate to say that in-depth knowledge hurts teaching by introducing more complexity than students can handle. And talking with an expert requires way, way, way more in depth knowledge than teaching. There are many teachers who do a fantastic job in what for them is a tertiary field. They know their way around their casebook and the core concepts of the subject, but would never try to engage an expert in an in-depth discussion of the concepts or rules that lie outside the teaching core.
In addition, there is one important way in which teaching undermines good scholarship. Young scholars spend enormous amounts of time on the "canon," the cases and rules that are in their casebooks. And so it is hardly surprising that many of them end up writing about the core canon--frequently with the result that their scholarship is derivative and repetitive. In many law school subjects, the core has been examined from every possible angle on multiple occasiions over a period of decades; that makes it very difficult to say something new about the material that is in the casebook!
I don't want to exaggerate. I actually agree with the Buck's core claim that teaching does enhance scholarship, but not for the reasons that Buck articulates. Teaching contracts, property, or constitutional law does not make you an expert--it does give you a broad overview of the core concepts and their interrelationships.
Read Buck's post!

Posted by Lawrence Solum at 7/11/2006 01:04:00 PM

Monday, July 10, 2006
 
State Decisis in a Court of Last Resort One of my favorite topics has come up over at PrawfsBlawg, where guest blogger Russell Covey has posted Are Supreme Court Justices Bound By Supreme Court Precedent? Here's a taste:
    While reading Justice Stevens' dissent in Kansas v. Marsh, which is largely focused on explaining why his joining Justice Blackmun's dissent in Walton v. Arizona does not commit him to agreement with the majority in Marsh, I was again reminded of a question that has bothered me ever since I read Justice Scalia's dissent in Dickerson v. U.S.: Are supreme court justices bound by supreme court precedent? The apparent answer is no. They can rule any way they like. In Dickerson, the majority ruled that 18 U.S.C. 3501, which purported to overrule Miranda, was unconstitutional. In dissent, Scalia explained why he disagreed and concluded his dissent by announcing that until §3501 is repealed, "[I] will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary." Does this strike anyone as a problem? It does me.
An interesting question. The conventional view is that the Supreme Court should afford its own prior decisions a presumption of validity. What does that mean? One possibility would be that this “presumption” is a mere “bursting bubble.” Precedents will be followed until and unless there are good reasons to depart from them. If this were the only role for precedent, then it would be virtually no role at all—it takes only a slender needle of flimsy argument to burst a bubble. Likewise, the presumption view is virtually meaningless if it only decides cases in which the arguments for and against sticking with the precedent are in equipoise. Of course, there will be some cases in which the arguments for and against a change in the law are perfectly balanced, but such cases are likely to be rare. The presumption view of the force of precedent is implausible. A more reasonable view is that precedents are entitled to weight because of the costs of legal change. One such cost is associated with reliance and expectations. Individuals and institutions may fail to receive expected benefits or incur avoidable costs. Another set of costs may be related to the implementation of new legal rules—at a minimum, the treatises will need to be rewritten. The instrumentalist view of precedent conceives of the decision whether to overrule existing precedent as simply adding another factor to the balance of factors that are relevant to the selection of an optimal rule. From the realist perspective, precedents should be overrule when the benefits of overruling exceed the costs and precedents should be followed when they already provide the optimal rule or when the costs of changing the law are greater than the marginal benefits the better rule would provide. The instrumentalist view of precedent is peculiar, because it denies that Supreme Court precedents should be treated as legally authoritative by the Supreme Court itself. One way of drawing out this peculiarity is by comparing the situation in which there is a prior Supreme Court precedent on a particular point of law to the situation in which there is no prior decision and a new case presents a novel issue of law. Of course, it is possible that the former case involves greater reliance interests than the later case, but this is not necessarily so. It might well be that the relevant individuals and institutions have made plans based on guesses about the Supreme Court’s likely decision or that they have made plans for no good reason at all. From the instrumentalist perspective, reliance interests are valued in terms of consequences of disappointed expectations. Stare decisis is simply one mechanism by which reliance interests could be generated. The point is that the instrumentalist conception reduces the force of precedent to a contingent policy concern—one that may drop out entirely in some cases. What is the alternative to treating precedent as a presumptively valid or giving precedents instrumental force? The formalist conception of stare decisis is based on the idea that precedents are legally binding or authoritative. That is, a formalist believes that precedents provide what are sometimes called “content independent” or “peremptory” reasons for action. Of course, the formalist conception of precedents as legally binding is quite familiar, even in our realist legal culture. When it comes to vertical stare decisis, the conventional notion is that the decisions of higher courts are binding on lower courts. A Court of Appeals may not decide to overrule a Supreme Court decision because the advantages of the better rule outweigh the costs of changing legal rules. The idea of binding precedent also operates at the level of intermediate appellate courts. Three judge panels of the United States Courts of Appeal are bound by the prior decisions of the Court; they are not free to decide that the benefits of a better rule outweigh the benefits of adhering to the law of the circuit.
And also at Prawfsblawg, Will Baude writes:
    Russell Covey suggests that it is problematic that the Supreme Court Justices are free to disregard Supreme Court precedents while everybody else is not. I agree with him that such an asymmetry would be troubling, but I think he is attempting to solve it in the wrong way. Given a conflict between what the Constitution says and what the Supreme Court says that the Constitution says, most people are not bound to follow the latter.
Baude is on to one of the most important issues in debates about constitutional stare decisis. Some originalists may object to constitutional stare decisis on the basis of the notion that it only the Constitution itself should be considered to be legally authoritative. If the precedents are consistent with the meaning of the Constitution, then the doctrine of stare decisis doesn’t make a difference. If the precedents are inconsistent with the Constitution, then judges are obligated to follow the Constitution itself are not the precedents—so the argument would go.
There is something to this argument. Affording strong stare decisis effect to precedents that disregarded the Constitution would, in fact, be to elevate the status of judicial decisions above the Constitution itself. And such elevation would be inconsistent with the formal rule that the Constitution is the Supreme law of the land. In addition, giving precedents the power to overrule the Constitution would create questions of legitimacy. It is unclear whether there is any theory that would legitimate the assignment of a power to overrule the Constitution to the Supreme Court.
But these same problems do not exist if we are dealing with precedents that are based on formalist legal reasoning that aims at the interpretation and application of the original meaning of the Constitution. Such decisions do not involve an implicit claim that the Supreme Court may overrule or modify the Constitution—quite the contrary, they assume the opposite.
Of course, it is possible to disagree about the meaning of the Constitution. We may come to believe that a prior decision—although formalist in method—involved a mistake. The question then becomes, can we legitimately give stare decisis effect to a formalist decision if we believe the decision is mistaken? The answer to this question is “yes, we can.” Once we are operating within the realm of formalist precedents, the question is not “Are we respecting the authority of the Constitution?” but is instead, “What is the institutional mechanism by which disputes about the meaning of the Constitution are to be settled?” At one extreme, we can imagine that we would entitle each and every government official the authority to decide for herself what the Constitution means. The problems with that system are obvious—it would create uncertainty, unpredictability, and instability that would undermine the rule of law. Various other possibilities exist. We could give every judge the power to interpret the Constitution de novo, with no horizontal or vertical stare decisis. That system would not be as chaotic as one which gave the authority to every official—high and low—but it would, nonetheless, be a real mess. We could imagine a system in which every Supreme Court justice has interpretive authority, but a doctrine of vertical stare decisis binds the lower courts. That system would be more stable, but would still involve shifts in constitutional meaning—as the composition of the Court changes and as individual Justices change their minds. And at the other extreme from total hermeneutic polycentricism, would be a system in which the decisions of the Supreme Court which respect that text and original meaning are given binding effect—granting earlier Supreme Courts the power to constrain the interpretations made by later Supreme Courts. This final option maximize the rule-of-law values of stability, predictability, and certainty.
For more on this topic, see The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle
Some of my remarks above are adapted from a forthcoming piece, THE SUPREME COURT IN BONDAGE: CONSTITUTIONAL STARE DECISIS, LEGAL FORMALISM, AND THE FUTURE OF UNENUMERATED RIGHTS, which will appear in the University of Pennsylvania Journal of Constitutonal Law.

Posted by Lawrence Solum at 7/10/2006 10:37:00 AM

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