Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Tuesday, January 31, 2006
Hasen on the Failure of the Alito Filibuster Read The Failed Alito Filibuster, with an excellent analysis of Hasen's own failed prediction that Alito would be defeated. Here's a taste:
With respect to the Gang of 14 and the agreement, I certainly agree that the agreement did not help Democrats or hurt Republicans--contrary to the hew and cry at the time. But I don't think the agreement itself, actually hurts Democrats much either. It is not the agreement among the Gang of 14 that prevents a successful filibuster. That's because the agreement is not much more than "cheap talk." Any Senator who wanted to vote against Alito could reasonably claim exceptional circumstances. It is the political preferences of the Senators and not the agreement or the chumminess of the gang that is doing the work. Rowe & Baskauskas on the Rooker-Feldman Doctrine Thomas D. Rowe, Jr. and Edward L. Baskauskas (Duke University School of Law and Golden Gate University - School of Law) have posted 'Inextricably Intertwined' Explicable at Last? Rooker-Feldman Analysis After the Supreme Court's Exxon Mobil Decision (Federal Courts Law Review, Forthcoming) on SSRN. Here is the abstract:
Tuesday Calendar
Comande on Adjudicating Personal Injury Damages Giovanni Comande (Sant'Anna School of Advanced Studies - Faculty of Law) has posted Towards a Global Model for Adjudicating Personal Injury Damages: Bridging Europe and the United States (Temple International & Comparative Law Journal, Vol. 19, No. 2, 2005) on SSRN. Here is the abstract:
McGovern on Claims Resolution Faciliites Francis E. McGovern (Duke University School of Law) has posted The What and Why of Claims Resolution Facilities (Stanford Law Review, Vol. 57, p. 1361, April 2005) on SSRN. Here is the abstract:
Rosenthal on the Theory of Government Damages Liability Lawrence Rosenthal (Chapman University - School of Law) has posted The Theory and Practice of Government Damages Liability: Torts, Constitutional Torts, and Takings. Here is the abstract:
Monday, January 30, 2006
Constitutional Abstraction and Originalism I've been thinking and reading a good deal about constitutional theory recently, and coincidentally have come across several versions of a familiar argument against originalism. It goes something like this:
Second, this argument conflates the crucial distinction between what can be labeled original meaning originalism and original intent originalism. With few exceptions, contemporary originalists believe that the relevant inquiry is into the original public meaning of the constitution--not into the expectaitons or intentions of the framers with respect to how the constitution should or would be applied. Ironically, the move presupposes the relevance of both original public meaning and original intentions as it attempts to argue against them. Third, this argument is usually offered without the necessary supporting evidence. The constitution uses the phrase "equal protection of the laws" and "due process of law." Those phrases might be construed as general and abstract principles of equality and fairness, but they might not. Either phrase, or both, might have a relatively particular, sharp edged meaning. Whether they do or not cannot be answered by hand waving. You need to dig into the text and evidence about the public meaning of the phrasss at the time they were drafted and adopted. Fourth, the argument does not establish that expectations about application are irrelevant to constructiona and interpretation--merely that they would be relevant in a particular fashion. For example, even if the equal protection clause establishes some kind of equality principle, the question remains, "What principle?" Assume that it is possible that the idea was to establish judicial license to articulate some conception of equality and that the clause embodies only the general concept. (I am deploying the well known concept/conception distinction, best known from Rawls and Dworkin.) Evidence about expectations and intentions would be relevant to the question whether the "concept of equality" was the original public meaning and, if so, what the even the general concept meant. Monday Calendar
UCLA Law: Professor Bill Henderson Indiana University School of Law-Bloomington, "An Empirical Study of Single-Tier versus Two-Tier Partnerships in the AM Law 200" Hofstra Law: Seth Harris, New York Law School, “Law, Economics, and Accommodations in the Internal Labor Market” NYU Law: Richard Primus. Patterson on Morawetz on Wittgenstein Dennis Patterson (Rutgers University School of Law, Camden) has posted Wittgenstein on Understanding and Interpretation (Comments on the Work of Thomas Morawetz) (Philosophical Investigations, Vol. 29, No. 2, April 2006) on SSRN. Here is the abstract:
Garrett & Vermeule on Budget Process Transparency Elizabeth Garrett and Adrian Vermeule (University of Southern California - Law School and University of Chicago Law School) have posted Transparency in the Budget Process on SSRN. Here is the abstract:
Broughton on Capital Punishment J. Richard Broughton (United States Department of Justice - Capital Case Unit) has posted The Second Death of Capital Punishment on SSRN. Here is the abstract:
Raustiala & Sprigman on the Piracy Paradox and Fashion Design Kal Raustiala and Chris Sprigman (University of California, Los Angeles - School of Law and University of Virginia - School of Law) have posted The Piracy Paradox: Innovation And Intellectual Property In Fashion Design on SSRN. Here is the abstract:
Joseph on "Smart Intelligence" Anne M Joseph (UC Berkeley Law) has posted The Architecture of Smart Intelligence: Balancing Unification and Redundancy in Agency Design and Congressional Oversight (California Law Review, Vol. 94, 2006) on SSRN. Here is the abstract:
Degan on Taxing Commuting Expenses Tsilly Dagan (Bar-Ilan University, Faculty of Law) has posted Ordinary People Necessary Choices on SSRN. Here is the abstract:
Sunday, January 29, 2006
Legal Theory Calendar The Calendar is still in progress.
UCLA Law: Professor Bill Henderson Indiana University School of Law-Bloomington, "An Empirical Study of Single-Tier versus Two-Tier Partnerships in the AM Law 200" Hofstra Law: Seth Harris, New York Law School, “Law, Economics, and Accommodations in the Internal Labor Market” NYU Law: Richard Primus.
NYU Legal History: Claire Priest, Northwestern, “Creating an American Property Law: Alienability and its Limits in American History” Ohio State Law: Omri Ben-Shahar, Contracts Without Consent UCLA Legal History: Dennis J. Ventry, Jr., UCLA, "Family Tax Inequities and Community Property Law, 1913-1930"
Stanford Law & Economics: Daniel Kelly (U.S. Court of Appeals for the Second Circuit), "The 'Public Use' Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence" Lewis & Clark Law: Anita Bernstein, Emory, Keep It Simple: An Explanation of the Rule of No Recovery for Pure Economic Loss Boston University Law: Mike Meurer and Maureen O'Rourke, Contract and Coordination Failure: Mandatory and Prohibited Terms in Intellectual Property Licenses. Brooklyn Law: Wendy Seltzer, Brooklyn Law School, The Chilling Effects of Legal Threats to Online Speech—and Ways to Warm the Air. Florida State Law: Suzanna Sherry, Vanderbilt University Law School. Fordham Law: Thomas H. Lee, Fordham & Visiting Columbia, "The World Balance of Power and the Evolution of U.S. Foreign Relations Law" UC Berkeley, Kadish Center: Lawrence Sager, Texas. NYU Colloquium on Tax Policy & Public Finance: Jason Furman, NYU Wagner School, “Coping With Demographic Uncertainty.” Northwestern Law, Advanced Topics in Taxation: Steven A. Bank, Professor of Law, University of California at Los Angeles, "Dividends and Tax Policy in the Long-Run" Oxford Comparative Law Discussion Group: Dr Péter Gárdos, Fundamental Conceptions of the Basis of Civil Liability: Insights from the Draft Hungarian Civil Code
Notre Dame Law: Ernest A. Young, Texas. Georgetown Law & Economics: Jonathan Klick, Florida State University College of Law, "Incomplete Contracts and Opportunism in Franchising Arrangements: The Role of Termination Clauses" Boston College Law: Michelle J. Anderson, Professor of Law, Villanova University School of Law. University of Illinois Law: East Asia Undisciplined: Law, Economics, and Institutions in East Asia
Legal Theory Lexicon: Balancing Tests
Case-by-Case versus Systemic Balancing The first distinction to master when thinking about balancing tests is that between case-by-case and systemic balancing. When a court adopts a case=by-case balancing test, the test is applied to each case, one case at a time. For example, in personal jurisdiction law, a case-by-case balancing test is used to determine whether assertions of personal jurisdiction are consistent with the Due Process Clause. But not all balancing is done on a case-by-case basis. For example, Mathews v. Eldridge announced a balancing test for determining whether pre-deprivation hearings are required by Due Process. This balancing test is applied to general categories (types) of deprivations. Once it has been determine that the balancing test does not require a hearing in category (e.g. Social Security disability benefit cases), the result is a categorical rule that can be applied to the category without further balancing. There is, of course, an analogy between the difference between case-by-case versus systemic balancing and the difference between act and rule utilitarianism. Act utilitarianism makes the rightness of an action depend on the consequences of that individual action. Rule utilitarianism makes the rightness of an action depend on whether the action conforms to the system of rules that would produce the best consequences. This analogy points to a larger concept--the scope of decision problem. Many legal theories assume that the scope of decision is an individual action or case, whereas others look to individual legal rules and yet others look to types of rules. Here is a nifty move, made famous by David Lyons (the legal philosopher who teaches at Boston University). Lyons argued that rule utilitarianism could be shown to be extensionally equivalent to act utilitarianism. His argument was beautifully simple. Take a rule and a particular action that would be required by act utilitarianism but forbidden by the utility maximizing rule. Now imagine an exception to the rule that would allow the utility maximizing action to be treated differently. The new rule-plus-exception produces more utility than the old rule. Hence rule utilitarianism requires the new rule. Lyons argued that we can iterate this move until rule utilitarianism and act utilitarianism require exactly the same results. One more point about case-by-case versus systemic balancing. Both kinds of balancing can be done ex post (backwards looking) or ex ante fowards looking. Take the Learned Hand balancing test for negligence. This test requires us to compare the cost of safety (ex post) against the benefits (ex post). This is ex post, case-by-case balancing. But when courts decide whether to issue an injunction, they sometimes "balance the equities," ex ante, asking whether the injuries done if the injunction does not issue will outweigh those that will result if the injunction is entered--in the future. Likewise, systemic balancing can be done either ex post or ex ante. What is Balanced? Yet another question that must be faced by any balancing test is "What is balanced?" Courts seem to think that just about any sort of interest or factor can be balanced. One kind of balancing test is represented by the International Shoe test for personal jurisdiction. This test balances interests--i.e. the interest of the plaintiff in the forum, the interest of the forum in the dispute, and so forth. Another kind of balancing test takes a varity of so-called factors into account: "prejudice to the defendant," "the impact on nonparties," and so forth in the case of tests for mandatory joinder. Properly speaking, such factors cannot really be balanced. Interests belong on the same scale--at least if they are the right kind of interests, but "factors" are usually considerations that bear in complex ways on a decision. The integration of multiple factors into a decision may involve balancing, but it also may involve reasoning that doesn’t actually weigh and compare commensurables. The Commensurability Problem This last point about balancing tests leads to a very fundamental idea in legal theory. Some approaches to moral theory make all ultimate values commensurable. In contemporary law and economics, for example, one approach reduces all value to preference-satisfaction, which then can be weighed via a Bergson-Samuelson social utility function. W(x) = F {U1(x), U2(x), . . UN(x)}, where F is some increasing function, U1 is the utility of state of affairs X for individual number 1, and so forth. Although some forms of consequentialism have the property of making all values commensurable, many moral theories do not have this property. Deontological ethics and virtue ethics, for example, generally are interpreted as maintaining that not all values are commensurable and hence as denying that balancing is even possible in some choice situations. The commensurability problem also provides a nifty move for legal theorists. If someone proposes a balancing test, ask yourself if the things that it requires to be weighed are such that they really can be measured on the same scale. If not, then the proposed balancing test simply will not be able to do the work assigned to it. Balancing Tests and the Rule of Law Yet another issue concerning balancing tests is the fancy version of the law student's intuition that balancing tests are subjective. Justice Scalia, for example, has argued that balancing tests undermine the rule of law because of their subjectivity and elasticity. If we believe that the rule of law values--certainty and predictability of the law--are very great social goods, then we have a general reason to prefer categorical rules to balancing tests. On the other hand, some balancing tests may be actually be more predictable than some rules with respect to a particular problem. For example, a case could be made that the "purposeful availment" component of the International Shoe test for personal jurisdiction is more subjective than the multifactor balancing component of the Shoe test. Some rules are very fuzzy; some balancing tests are quite precise. Conclusion Balancing tests are so common in American law, that you might begin to take them for granted, but that would be a mistake. Almost every balancing test raises interesting issues of legal theory. I hope this post has provided you with the tools to begin asking those questions. Saturday, January 28, 2006
Legal Theory Bookworm The Legal Theory Bookworm recommends Educating Oneself in Public : Critical Essays in Jurisprudence by Michael S. Moore. Here's a blurb:
Download of the Week The Download of the Week is Law, Science, and Morality: A Review of Richard Posner's The Problematics of Moral and Legal Theory by John Mikhail. Here is the abstract:
Friday, January 27, 2006
Friday Calendar
Oxford Centre for Competition Law & Policy: Peter Willis & Taylor Wessing, The privilege against self-incrimination in competition investigations All Souls College, Oxford, Neill Lecture: The Honourable Michael Beloff QC, Paying the Judges - Who, Whom, How Much and Why? Vanderbilt Faculty Workshop: Don Herzog, University of Michigan Law School, "The Kerr Principle, State Action and Legal Rights" University of Syracus, Sawyer Law and Politics Program Research Workshop: Petra Hejnova, Maxwell School, "Women's Mobilization and Democratic Transitions: A Study of Regional Patterns" University of Georgia Law: Ronald Rotunda (George Mason), The Detainee Cases of 2004 and Their Aftermath Michigan State University: THIRD ANNUAL INTELLECTUAL PROPERTY & COMMUNICATIONS LAW AND POLICY SCHOLARS ROUNDTABLE Rossi on Gardner on State Constitutions Jim Rossi (Florida State University College of Law) has posted The Puzzle of State Constitutions on SSRN. Here is the abstract:
Ryan on Breyer and Sunstein James E. Ryan (University of Virginia School of Law) has posted Does It Take a Theory? Originalism, Active Liberty and Minimalism (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Greeen on Employment Discrimination Mediation Michael Z. Green (Texas Wesleyan University) has posted Tackling Employment Discrimination With ADR: Does Mediation Offer A Shield for the Haves or Real Opportunity for the Have-Nots? (Berkeley Journal of Employment and Labor Law, Forthcoming) on SSRN. Here is the abstract:
White on Jackson's Youngstown Opinion Adam White has posted Justice Jackson’s Draft Opinions In The Steel Seizure Cases on SSRN. Here is the abstract:
Kaplan on Tax Policy and Family Care for Older Adults Richard Kaplan (Illinois) has posted Federal Tax Policy and Family-Provided Care for Older Adults (Virginia Tax Review (vol. 25, no. 2), Fall 2005 issue, pp. 509-562) on SSRN. Here's the abstract:
Thursday, January 26, 2006
Thursday Calendar
Boston University Law: David Walker, Financial Accounting, Corporate Behavior, and the Promise of Offensive Accounting Brooklyn Law: Margaret A. Berger, Brooklyn Law School, Vioxx: A Roadmap of Fissures in Our Legal and Healthcare Systems Florida State Law: Charlene Luke, Florida State University School of Law UC Berkeley, Kadish Center: Charles Beitz, Professor of Politics, Princeton University Kings College, London: Angus Dawson (Keele) Children's vaccinations, best interests and parental disagreement. Forum for European Philosophy, Institut Français, London: Rupert Read (UEA), Rawls and Habermas: Liberalism is inherently inegalitarian and unsustainable. Oxford EC Law Discussion Group & Oxford Comparative Law Discussion Group: Vanessa Mak, Harmonisation of European Contract Law: Problem Areas in the Sale of Goods Law UCLA Legal Theory Workshop: Annelise Riles. UCLA Tax Policy and Public FInance Workshop: Michael Livingston, Rutgers School of Law - Camden, Rendering Unto Caesar: Religious Perspectives on Progressive and Flat Taxation University College London, Current Legal Problems Lecture: Mr Gavin Phillipson (King's College London), "Deference, Discretion and Democracy: Judicial Reasoning under the Human Rights Act" University of Michigan, Law & Economics: Richard Nelson, Columbia, The Market Economy, and the Scientific Commons University of Texas Colloquium on Constitutional and Legal Theory: Jane Schacter (Wisconsin, Stanford), "Political Accountability, Proxy Accountability, and Democratic Legitimacy" & "Democracy Diminished" Yale Law Economics & Organizations: Professor James Poterba, MIT, Economics, Defined Contribution Plans and Retirement Saving Risk and also here. Wednesday, January 25, 2006
Wednesday Calendar
University College London, International Law Society: Professor Christine Chinkin, LSE, "Gender and international peace and security" Philosophy of Education, London: John Marshall, Multiculturalism and Culturual Plurality Revisited. NYU Law & History: Barry Friedman, Jacob D. Fuchsberg Professor of Law, NYU School of Law, "Neither Force Nor Will: The Popular Foundations of Judicial Review" Oxford, The Ethox Centre and Oxford Genetics Knowledge Park Seminar Series 2006: Professor Bartha Maria Knoppers, "The Public Population Project in Genomics (P3G) International Consortium for Linking Population Genomic Studies: What it is and what it offers." Oxford Criminology Seminar Series 2005/06: Julian Roberts, The Virtual Prison: Community Custody and the Evolution of Imprisonment Oxford Law Faculty: Jeremy Horder, A New Homicide Act for England and Wales? (Consultation Paper no.177) University of Toronto: Lisa Philipps, York University, Partners in Business, Partners in Love: Tax Law and the Two-Person Career Villanova Law: David Wilkins, Harvard Law School. Mikhail on Posner John Mikhail (Georgetown) has posted Law, Science, and Morality: A Review of Richard Posner's The Problematics of Moral and Legal Theory on SSRN. Here is the abstract:
Frost on Judicial Recusal Amanda Frost (American University) has posted Keeping Up Appearances on SSRN. Here is the abstract:
More on Open Access Publishing & e-prints Michael Froomkin writes about his Copyright Experiences Wiki--a site that provides information about copyright policies of various legal publishers. It's a Wiki--so you (or we) can share information about various journals. Here's the description from the site:
Tuesday, January 24, 2006
Are Reprints Obsolete?--with an Update Dan Solove has a very interesting post over at Concurring Opinions. Here's a taste:
Update: Michael Froomkin comments on Solove's post:
2. With respect to those who you email links, there is the problem of public access. Of course, if you publish in a journal that allows or provides a public access (free, downloadable) electronic version, this is not a problem. But some peer-reviewed journals charge a truly prohibitory fee for one-time downloads by nonsubscribers, i.e. $30 for one copy of one article. The best solution is do not publish in these journals. Book Announcement: Happy Lives & the HIghest Good by Lear
Tuesday Calendar
Chicago IP Colloquium, Chicago-Kent College of Law: Professor Rebecca Eisenberg, The University of Michigan Law School, Drug Regulation as Intellectual Property. Lewis & Clark Law: Geoffrey Manne, The Cost of Disclosure Oxford Human Rights Discussion Group: Kai Moller, Two Conceptions of the Constitutional Right to Privacy Merton College, Oxford: Chris Hale, Private Equity USC-Caltech Center for the Study of Law & Politics, Challenges of Participatory Democracy Workshop: Donald Green, Yale Unviersity, Department of Political Science, What Can Be Done to Increase Voter Turnout? Putting the Party Back into Politics: Results of an Experiment Designed to Increase Voter Turnout through Music, Food and Entertainment & The Impact of Radio Advertisements on Voter Turnout and Electoral Competitiveness University of Chicago, Coase Lecture: Lior Strahilevitz, Information Asymmetries and the Rights to Exclude. Monday, January 23, 2006
Monday Calendar
Florida State Law: Douglas Baird, University of Chicago Law School London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Raimo Tuomela (Helsinki), Cooperation and the We-Perspective University of Texas Law: Abe Wickelgren (UT Economics) "Why Divorce Laws Matter: Incentives for Non-Contractible Marital Investments Under Unilateral and Consent Divorce Vanderbilit Law & Politics Seminar: Virginia Hettinger, University of Connecticut Political Science, & Wendy Martinek, SUNY Binghamton Political Science, "Judging on a Collegial Court: Influences on Federal Appellate Decision Making" Welcome to the Blogosphere . . . . . . to Feminist Law Professors, with Ann Bartow and Wendy Gordon, Caitlin Borgmann, Jenny Rivera, Rebecca M. Bratspies, Ruthann Robson, Katherine Franke, Susan Sturm, Martha Fineman, Sonia Katyal, Rebecca Tushnet, Amy Adler, Sylvia Law, Kimberly Yuracko, Margaret Chon, Deborah Rhode, Ellen Podgor, JoAnne Epps, Kathryn Stanchi, Madhavi Sunder, Berta Hernandez, Nancy Dowd, Elizabeth B. Brandt, Maureen Laflin, Anita L. Allen-Castellitto, Regina Austin, Fran Ansley, Jennifer Hendricks, Joan MacLeod Heminway, Mae Quinn, Llewellyn Gibbons, and Jessica Litman. That's quite a line up! Symposium Announcement: The Future of Unenumerated Rights
Sunday, January 22, 2006
Legal Theory Calendar
Florida State Law: Douglas Baird, University of Chicago Law School London School of Economics, Centre for Philosophy of the Natural and Social Sciences: Raimo Tuomela (Helsinki), Cooperation and the We-Perspective University of Texas Law: Abe Wickelgren (UT Economics) "Why Divorce Laws Matter: Incentives for Non-Contractible Marital Investments Under Unilateral and Consent Divorce Vanderbilit Law & Politics Seminar: Virginia Hettinger, University of Connecticut Political Science, & Wendy Martinek, SUNY Binghamton Political Science, "Judging on a Collegial Court: Influences on Federal Appellate Decision Making"
Chicago IP Colloquium, Chicago-Kent College of Law: Professor Rebecca Eisenberg, The University of Michigan Law School, Drug Regulation as Intellectual Property. Lewis & Clark Law: Geoffrey Manne, The Cost of Disclosure Oxford Human Rights Discussion Group: Kai Moller, Two Conceptions of the Constitutional Right to Privacy Merton College, Oxford: Chris Hale, Private Equity USC-Caltech Center for the Study of Law & Politics, Challenges of Participatory Democracy Workshop: Donald Green, Yale Unviersity, Department of Political Science, What Can Be Done to Increase Voter Turnout? Putting the Party Back into Politics: Results of an Experiment Designed to Increase Voter Turnout through Music, Food and Entertainment & The Impact of Radio Advertisements on Voter Turnout and Electoral Competitiveness University of Chicago, Coase Lecture: Lior Strahilevitz, Information Asymmetries and the Rights to Exclude.
University College London, International Law Society: Professor Christine Chinkin, LSE, "Gender and international peace and security" Philosophy of Education, London: John Marshall, Multiculturalism and Culturual Plurality Revisited. NYU Law & History: Barry Friedman, Jacob D. Fuchsberg Professor of Law, NYU School of Law, "Neither Force Nor Will: The Popular Foundations of Judicial Review" Oxford, The Ethox Centre and Oxford Genetics Knowledge Park Seminar Series 2006: Professor Bartha Maria Knoppers, "The Public Population Project in Genomics (P3G) International Consortium for Linking Population Genomic Studies: What it is and what it offers." Oxford Criminology Seminar Series 2005/06: Julian Roberts, The Virtual Prison: Community Custody and the Evolution of Imprisonment Oxford Law Faculty: Jeremy Horder, A New Homicide Act for England and Wales? (Consultation Paper no.177) University of Toronto: Lisa Philipps, York University, Partners in Business, Partners in Love: Tax Law and the Two-Person Career Villanova Law: David Wilkins, Harvard Law School.
Boston University Law: David Walker, Financial Accounting, Corporate Behavior, and the Promise of Offensive Accounting Brooklyn Law: Margaret A. Berger, Brooklyn Law School, Vioxx: A Roadmap of Fissures in Our Legal and Healthcare Systems Florida State Law: Charlene Luke, Florida State University School of Law UC Berkeley, Kadish Center: Charles Beitz, Professor of Politics, Princeton University Kings College, London: Angus Dawson (Keele) Children's vaccinations, best interests and parental disagreement. Forum for European Philosophy, Institut Français, London: Rupert Read (UEA), Rawls and Habermas: Liberalism is inherently inegalitarian and unsustainable. Oxford EC Law Discussion Group & Oxford Comparative Law Discussion Group: Vanessa Mak, Harmonisation of European Contract Law: Problem Areas in the Sale of Goods Law UCLA Legal Theory Workshop: Annelise Riles. UCLA Tax Policy and Public FInance Workshop: Michael Livingston, Rutgers School of Law - Camden, Rendering Unto Caesar: Religious Perspectives on Progressive and Flat Taxation University College London, Current Legal Problems Lecture: Mr Gavin Phillipson (King's College London), "Deference, Discretion and Democracy: Judicial Reasoning under the Human Rights Act" University of Michigan, Law & Economics: Richard Nelson, Columbia, The Market Economy, and the Scientific Commons University of Texas Colloquium on Constitutional and Legal Theory: Jane Schacter (Wisconsin, Stanford), "Political Accountability, Proxy Accountability, and Democratic Legitimacy" & "Democracy Diminished" Yale Law Economics & Organizations: Professor James Poterba, MIT, Economics, Defined Contribution Plans and Retirement Saving Risk and also here.
Oxford Centre for Competition Law & Policy: Peter Willis & Taylor Wessing, The privilege against self-incrimination in competition investigations All Souls College, Oxford, Neill Lecture: The Honourable Michael Beloff QC, Paying the Judges - Who, Whom, How Much and Why? Vanderbilt Faculty Workshop: Don Herzog, University of Michigan Law School, "The Kerr Principle, State Action and Legal Rights" University of Syracus, Sawyer Law and Politics Program Research Workshop: Petra Hejnova, Maxwell School, "Women's Mobilization and Democratic Transitions: A Study of Regional Patterns" University of Georgia Law: Ronald Rotunda (George Mason), The Detainee Cases of 2004 and Their Aftermath Michigan State University: THIRD ANNUAL INTELLECTUAL PROPERTY & COMMUNICATIONS LAW AND POLICY SCHOLARS ROUNDTABLE
Legal Theory Lexicon: Procedural Justice
Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome. Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair? Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome. Perfect, Imperfect, and Pure Procedural Justice These questions about the fairness of procedures for slicing a cake can be generalized by setting out a framework for analyzing the idea of procedural justice. In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3) pure procedural justice. Consider perfect procedural justice first. There are, he writes,
In the case of imperfect procedural justice, the first characteristic, an independent criterion for fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is not. Rawls contends:
The final notion is "pure procedural justice." Rawls writes:
Three Models of Procedural Justice: Accuracy, Balancing, and Participation Rawls's theory provides an abstract framework that can be used to categorize theories of procedural justice, but it doesn't tell us what the content of a theory of procedural justice might be. Three approaches have been characteristic of thinking about procedural justice--one emphasizes accuracy, the second cost, and the third participation. Each of these three approaches can be expressed as simply model of procedural justice:
But there are severe problems with the accuracy model. Given that civil procedure imposes real costs on litigants and society at large, it is difficult to argue that the smallest marginal gain in accuracy is worth the largest investment of resources. Justice has a price, and there is a point at which that price is not worth paying. Moreover, we have every reason to believe that accuracy is subject to the law of diminishing returns. If we were to make perfect accuracy our highest commitment, we would find that as we got closer and closer to our goal, the cost of reducing the marginal rate of error would become higher and higher. We will reach a point where society would be required to invest enormous resources for the most infinitesimal gain in accuracy. The Balancing Model The second model "the balancing model" corresponds to the idea of imperfect procedural justice. The consequentialist version of imperfect procedural justice finds substantial support in the decisions of the Supreme Court that interpret the Due Process Clauses of the United States Constitution. The most striking example is provided by the balancing test announced in Mathews v. Eldridge:
Consider for example, Richard Posner?s economic analysis of procedure. He writes, "The objective of a procedural system, viewed economically, is to minimize the sum of two costs. The first is "the cost of erroneous judicial decisions." The second type of cost is "the cost of operating the procedural system." Operating costs are borne by the public, in the form of subsidies to the judicial system and by the parties in the form of court fees, attorneys' fees, and litigation costs. The Participation Model The third model--the participation model?corresponds to the idea of pure procedural justice. The key notion is that it is it is participation in the process and not outcome that defines procedural justice. The second interpretation of the participation model connects the independent value of process with the dignity of those who are affected by legal proceedings. One way of articulating this central notion is that everyone is entitled to their day in court. This right to participation is justified by a background right of political morality, i.e. the right of persons (or citizens) to be treated with dignity and respect. A procedure which ensures parties an opportunity to participate in the process of making decisions that affect them might be counted as a just procedure for this reason, independently of the correctness of the outcome that results from the procedures. On influential version of the participation model has been developed by Jerry Mashaw. Mashaw states the intuitive idea as follows:
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