Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Friday, February 28, 2003
Julie Cohen on DRM & Privacy Julie Cohen (Georgetown) is delivering a very interesting paper on digital rights management and privacy at the Berkeley DRM conference this afternoon. She begins her talk with the obvious and very troubling point that DRM systems may facilitate tracking of what we view, listen to, and read--creating a troubling threat to "intellectual privacy." What if this happens? How could the law respond? Fair Information Practices, Julie argues, are not enough, because these proctections are voluntary and likely to be anemic. Even privacy torts can be waived in advance & likely would by click-wrap agreements intergrated into DRM systems. Cohen then asks whether intellectual privacy ought to trump such agreements. The best solution, she suggests, is to design personal privacy protections into DRM in the first place. Rather than mandating specific technologies, Cohen argues, government can create inalienable rights that would constrain technology that can invade privacy.
Not DRM. The Domination Clause of the Utah Constitution While a Microsoft representative was explaining Microsoft's decision to build support for DRM into Windows, I took a look at the fine blog, A Good Oman. Nate has a very interesting post on the domination clause of the Utah State Constitution. His blog is always provocative, interesting, and smart.
Lessig Larry Lessig is speaking now at the Berkeley DRM conference. He is arguing that we are "solving for the extremes," those who want all information to be controlled or those who want everything to be free. He worries that DRM will create an architecture that forces those who to share their content, but reserve some rights into a false choice between total control (DRM) and giving their content away with no restrictions at all. His suggested alternative is a variation on DRM, which he calls DRE (where E stands for Expression). Larry was quite emphatic that the E was more than an emphasis on the power to set permissions in DRM, but even after hearing his explanation, I wasn't really sure what the difference was.
Regulation versus Market Approaches to DRM, More from Berkeley Another emerging theme from this morning's sessions concerns the role of government in establishing DRM standards. Several participants expressed concern about regulatory lock-in to particular DRM systems. Pam Samuelson asks about another form of legal regulation that may have a big impact on DRM, patents. If a DRM standard emerged around a patented technology, then the firm that owned the patent could make decisions that could determine who would be able to sell digital content.
Religion and IP Rights, More from the Berkeley DRM Conference David Farber made an eloquent plea to those who engage in public debate about DRM to forgo religion. This please certainly resonated with this observer of the digital copying wars. How many times have I heard IP stakeholders take the position that P2P is the moral equivalent of "armed robbery." (I heard it again today.) Nonsense and destructive of dialogue. And when I teach the Napster in my IP course, how many students have argued that P2P is a basic human right, because the music industry rips off artists. Bogus and destructive of dialogue.
Radin on the New Intellectual Property (and the New Contract) Margaret Jane Radin (Stanford) writes the following in response to my earlier post (live from the DRM conference at Berkeley):
More from the DRM Conference at Berkeley
Part Two: The New Politics of IP Legislation Cary Sherman of the RIAA delivered the party line--P2P is evil and the ultimate solution is something that consumers will prefer to P2P. But I don't think that even Cary believes that the industry has found the holy grail--a way to put the genie back in the bottle! Sarah Deutsch of Verizon Communications obviously had a very different agenda. . Their sharp disagreement highlights how much the political environment for IP legislation has changed. JessicarestinLitman (among others) has observed that the history of copyright legislation involves the iteration of a three stage sequence: (1) new technology creates a new stakeholder with interests that are not accomodated by existing legislation; (2) the new takeholder goes to Congress which tells the stakeholder that consensus among all stakeholders is required for legislative action; (3) a bargaining process produces a solution which is win/win among the ip stakeholders, but extracts rents from others (e.g. through term extension). But the big ISPs and the big consumer electronic companies are now involved in the process. And consumers now have a visible stake. You can't imprison the 12 year old children of ordinary folks, much less U.S. Senators. Hence, the next round of ip legislation will be conltested in Congress. Prediction: No politically viable consensus will emerge from multiparty negotiations between ip stakeholders, ISPs, and consumer electronic firms.
The Old Intellectual Property & The New Intellectual Property It is the morning of the second day of the Digital Rights Management conference at U.C. Berkeley. The session this morning is on DRM as an enabler of business models--and readers of this blog may be asking, "What does this have to do with legal theory?" The panel is impressive, but it includes mostly industry representatives. There isn't a single legal theorist on the list. Nonetheless, I think DRM will soon be on the tongue's of legal theorists everywhere. One of the great law review articles of all time was Charles Reich's The New Property, famously cited in Goldberg v. Kelly and at one time (maybe still?), the single most cited law article ever. The debate about the new property was, I believe, one of the key events that played a role in the transformation of American legal education and legal scholarship. But something equally profound is happening in the field of intellectual property. The old intellectual property (copyright, patent, trademark) is giving way to the new intellectual property (digital rights management, the anti-circumention provisions of the Digital Millenium Copyright Act). Here is an example from CNET yesterday:
A while back I posted on Margaret Jane Radin's Information Tangibility (download from SSRN here), which deals with a very important dimension of this issue. Don't be the last legal theorist on the block to read Margaret Jane's important paper! Post Script Lon Sobel's paper from this morning's session is available here. And the wonderful folks at Berkeley have put together a really spiffy resource page, click here.
Friday Workshop at Buffalo At Buffalo, Lynn Mather does an internal workshop on How Does What Clients Want Link to What Lawyers Should Do? An Empirical Look at Lawyer-Client Relations. It is up to 27 in Buffalo; maybe it will be al fresco?
Yesterday at Princeton Yesterday at Princeton's Political Philosophy Colloquium, Susan Moller Okin workshopped Multiculturalism and Feminism: No Simple Question, No Simple Answers . Here is a taste:
Blogging from Two Places at Once This weekend I am blogging from the digital rights management (DRM) conference at Berkeley, and simultaneously (well, maybe not quite simultaneously) from the spectrum policy conference at Stanford. Both conferences deal with cutting edge issues! More later.
New on SSRN As February wanes, SSRN waxes. Here are two more new and interesting papers:
Brian Tamanaha (St. John's) uploads The Rule of Law for Everyone? If you don't already have one, get ahold of Brian book A General Jurisprudence of Law and Society (Oxford 2001).
Thursday, February 27, 2003
Hurley on Cognitivism in Political Philosophy Political Theory Daily Review posted a link to Susan Hurley's paper Cognitivism in Political Philosophy. Susan is super smart, and this paper looks very interesting.
Looking Inside the Brains of the Stingy There is a wonderful little article in today's New York Times (free registration required) on empirical research and game theory. Here is the way it starts:
Supreme Court Forecasting Project Take a look at the website for the Supreme Court forecasting project at Washington University. The predictive model battles legal experts on this term's cases. Totally fun. When you get to website, the trick is to click on the cases followed by [Decided] in brackets. Those are the cases where you can compare the experts versus the model versus what really happened.
Lawrence v. Texas, Liberty, and Originalism Jacob Levy of the Volokh Blog Empire posted earlier today (link to archive here) on reactions to Ramesh Ponnuru's piece on Lawrence v. Texas--the privacy case that revisits the cluster of issues raised by Bowers v. Hardwick. The blogosphere is buzzing, with posts by Eve Tushnet, Julian Sanchez, and Dana Berliner. Ramesh sees this case as dividing originalists and libertarians, but isn't that a false dichotomy? What do libertarian originalists (e.g. Randy Barnett) have to say about this case? Post Script It turns out that Randy is on the Institute for Justice's brief, which in fact presents an originalist, tradition-focused case, based on the limits of government power, as opposed to implied fundamental rights.
Thursday is Workshop Day Across the country, lawprofs are polishing their papers for March Madness. Here is this week's roundup of Thursday workshops:
At Florida State, Richard McAdams (Illinois) gives Testing the Focal Point Theory of Expressive Law: A Pilot Experiment.
Larry Yackle (Boston) does an internal workshop on The Convenient Constitution.
At Kadish this week is Judith Jarvis Thomposn, one of our very finest moral philosophers. She does her paper entitled, The Legacy of Principia (click on the title for download). The paper is about the G.E. Moore's famous/infamous open question argument. Given that X possesses any natural property Y, it is an open question whether X is good. Here is a nice little sampling of her elegant paper:
Post Script And Erik Luna (Utah) delivers Punishment Theory, Holism, and the Procedural Conception of Restorative Justice at the University of Pittsburgh School of Law. Here is a tast of Erik's interesting paper:
UT Law and Philosophy Program I've just added a link to the side bar that will take you to the University of Texas Law and Philosophy Program events page. Brian Leiter has a fabulous lineup for this Spring: Gerry Cohen, Jules Coleman, Joseph Raz. Whoo hoo!
Wednesday, February 26, 2003
March is Right Around the Corner, So SSRN is Hopping With law review board transitions only a few days or weeks away, everyone is rushing to finish their latest. And when they do, they put it up on SSRN. Here is this afternoon's SSRN roundup:
Iain Ramsay (York, Osgoode Hall) uploads The Political Economy of Consumer Bankruptcy Reform in Canada.
Curtis Bradley (Virginia) offers up International Delegations, the Structural Constitution, and Non-Self-Execution (forthcoming in Stanford).
Michael Simons (St. John's) give us Retribution for Rats: Cooperation, Punishment, and Atonement (forthcoming in Vanderbilt).
Charles Koch (William & Mary) provides Envisioning A Global Legal Culture.
Procedural Fairness & Class Actions For my money, one of the most important (but least well theorized) topics in the law is procedural fairness. (My friends know that I have a monster draft on this topic that I've been working on for years.) Of course, there are utilitarian approaches to this question. In the law, the utilitarian framework seems, on the surface, to dominate--because of the line of cases beginning with Mathews v. Eldridge that enunciate a balancing test for the question whether someone must be given a hearing before the government deprives them of property--all of this as an interpretation of the due process clauses of the U.S. Constitution. But there is another line of authority, exemplified by Richards v. Jefferson County that seems to say an opportunity to be heard is required, before somone can be bound with finality. In technical terms, the Supreme Court has said that due process requires an opportunity to be heard, before the doctrine of res judicata can be applied so as to finally resolve a dispute.
Legitimacy One way of making progress on the thorny issues raised by competing theories of procedural fairness is to reframe the question. Here is my move. We can make progress on a theory of procedural justice by asking:
Dow Chemical Co. v. Stephenson This leads me to a case on which the Supreme Court will hear oral argument today, Dow Chemical Co. v. Stephenson. SCOTUSblog has a nice post. In a class action, are class members allowed to attack a judgment collaterally (in a separate legal proceeding) on the grounds that the class representatives did not provide adequate representation? This issue has been bouncing around the circuits for some time. A utilitarian approach strongly suggests the answer may be "no," because allowing collateral attacks on adequacy of representation makes it difficult to settle class actions. But can an absent class member, who believes the class action settlment is unfair, regard that the settlement as legitimately final if she believes two things: (1) the settlement was unjust on the merits, and (2) she was not adequately represented by the class representatives? The Supreme Court will decide by the end of June, or thereabouts.
New on SSRN today Here are the new papers from this morning and yesterday afternoon:
Steven Shavell (Harvard) posts Economic Analysis of the General Structure of the Law
Eric Claeys (St. Louis) gives us Takings, Regulations, and Natural Property Rights forthcoming from the Cornell Law Review.
Tuesday, February 25, 2003
Rick Hasen on Judicial Nominations My Loyola Marymount colleague, Rick Hasen, has a very thoughtful response to my post about Adam Cohen's Op/Ed condemning Deborah Cook (Bush nominee to the 6th Circuit Court of Appeals). Click here for Rick's post. Rick argues,
Second, if Rick is right, then I think the implications are profound. If the Supreme Court is incapable of deciding constitutional cases nonpolitically, I think that the institution of judicial review is vulnerable (and perhaps unjustifiable). Why have nine unelected individuals as a council of review?
Public Discourse About Judicial Nominations: A Turn in the Wrong Direction Adam Cohen has an Op/Ed on President Bush's nomination of Deborah Cook to the United States Court of Appeal for the Sixth Circuit in today's New York Times. (Click here for the Cohen's Op/Ed, free registration is required.) Cohen's piece is titled, Deborah Cook Is the Typical Bush Judicial Nominee — So Watch Out. (Here is the DOJ page on her nomination.) I don't know whether Deborah Cook is qualified for a seat on the Sixth Circuit or not, but I do know that Adam Cohen's editorial represents a very dangerous trend in public discourse about judicial nominations. More than ever, opponents of judicial nominations oppose candidates on the basis of political ideology--a trend that threatens to do fundamental damage to the rule of law. (The same phenomenon occurred when Clinton was President; the right was guilty then of the sins that the left commits today.) Cohen's editorial suggests that Justice Cook's decision in Davis v. Wal-Mart Stores, Inc., 756 N.E.2d 657 (Ohio 2001) demonstrates that she lacks the virtue of justice--that she distorted the law because she is biased in favor of big business and against employees. His editorial distorts the facts of the case, and misrepresents Justice Cook's dissenting opinion.
What did Adam Cohen Say? Cohen's editorial begins:
Is Cohen Right about Justice Cook's Opinion in Wal-Mart? Wal-Mart involved the intersection of two legal doctrines, the tort of spoliation of evidence and the doctrine of res judicata (or claim preclusion). Both require a bit of explanation.
The Spoliation Tort When a party to a lawsuit destroys evidence, the legal system has a variety of techniques for responding. There are criminal statutes that forbid the obstruction of justice or evidence tampering. During the discovery process, judges can sanction the destruction of evidence. At trial, a judge can instruct a jury that it may draw an inference (called the spoliation inference) to the effect that the party who destroyed evidence did so because it would have hurt their cause. In 1984 in the case of Smith v. Superior Court, the California Supreme Court added another legal doctrine, an independent tort action that allows that victim of spoliation to sue for damages based on their opponent's destruction of evidence. The spoliation tort was the basis for the plaintiff's claim before the Ohio Supreme Court in Wal-Mart.
Res Judicata The doctrine of res judicata (latin for "a thing decided") is part of the law of prior adjudication. Although res judicata is certainly technical, it is not a "mere technicality." Without this doctrine, lawsuits could continue forever. A party who lost the first time could simply sue again. A party who won, could continue to sue again and again, seeking new damages each time. The doctrine of claim preclusion is absolutely essential for a well functioning legal system, not just for powerful reasons of efficiency, but also because it would be horrendously unfair to defendants if they could be sued again and again on the same claim.
Res Judicata and the Spoliation Tort In the Wal-Mart case, the legal issue concerned the interaction between the new spoliation tort and the very old doctrine of res judicata. The conjunction of these two doctrines creates a special problem for the law, because the spoliation tort action is almost always brought when another lawsuit is already in progress. The rule is that you must bring all of your legal claims if they stem from the same facts--the jargon is "the same transaction or occurrence." By definition, spoliation tort claims arise from the same facts as the underlying claim--in Wal-Mart, it was a fork-lift accident. So, you must bring the claims together. But there is another rule. If two claims stem from the same facts, but one claim also relies on events that happened after the date the first lawsuit was filed, the two claims can be split into two separate lawsuits. But this creates a special problem for spolation tort cases, because the spoliation of evidence usually occurs after the first lawsuit is filed. Hence, many courts have ruled that the spoliation tort claim must be brought with the underlying claim. In the Wal-Mart case, the majority concluded that the spoliation of evidence claim did not arise from the same facts as the underlying injury claim, and hence concluded that res judicata did not apply. The court also concluded that the doctrine of res judicata should not be applied so as to work an injustice--in this case to reward a wrongdoer, i.e. a party who has destroyed evidence. This last bit of reasoning was unnecessary to the decision, and as a matter of law, is unsound. If there were a general equity exception to the doctrine of res judicata, then the doctrine could not do its vital work--bringing litigation to a definitive end.
Justice Cook's Dissent What did Justice Cook argue in dissent? At the outset, she noted that the spoliation tort is itself the subject of controversy. Most state Supreme Courts have not recognized the tort, and California (the state that created the tort) has now reversed itself. (I should note that I have been a proponent of the spoliation tort, but Justice Cook is right about the controversy.) Justice Cook's dissent was based on the theory that spoliation tort claims should be tried with the underlying action, if the spoliation occurred before the primary action (the claim based on the plaintiff's injury) was concluded. This is an issue upon which reasonable judges may differ. Requiring plaintiffs to try their spoliation claims with the underlying case has obvious advantages. We have one trial instead of two, one discovery process instead of two, one appeal instead of two, and so on. If we limit ourselves to looking backward (ex post) at the Wal-Mart case, then the application of res judicata might be said to be unfair--because it denies the plaintiff his day in court. If, however, we look forward, at the effects of the doctrine of res judicata on future cases, then a different picture emerges. In the long run, one might argue, reducing the costs of litigation and limiting satellite litigation is not only more efficient, it also minimizes the real hardships that our litigation process imposes on individuals and firms. Satellite spoliation cases can burden individuals as well as big corporations, and we should not shape the law of res judicata on the basis of the identity of the particular defendant in the case in which the issue reaches a state's Supreme Court.
Can You Trust Me? This post suggests that Adam Cohen's presentation of the Wal-Mart case is not trustworthy. But can you trust me? Don't I have an agenda? I do. But my agenda is not to promote President Bush's nominees. My agenda is to get political ideology out of the process of judicial selection, nomination, and confirmation. Deborah Cook should be confirmed if she posseses the judicial virtues. She should be confirmed if she possess civic courage, a judicial temperment, judicial integrity, judicial intelligence, sound practical judgment--and most importantly, the virtue of justice. But the virtue of justice is not the disposition to decide cases in a way that advances my political ideology (or yours). The virtue of justice is the dispositon to decide cases in accord with the law. There are exceptional cases, of course, where equity is required because the facts are so unusual that a special exception must be made, but Wal-Mart was not a case like that. An assessment of Justice Cook's performance in Wal-Mart should not be based on the question whether she favored the little guy or the big corporation. It should be based on the quality of her reasoning. Her opinion should damn her if it shows she lacks judicial integrity, fidelity to the law and concern for its coherence. But her opinion in Wal-Mart simply does not show those things.
The Fragility of the Rule of Law I am concerned about Adam Cohen's attack on Deborah Cook, because I am concerned about the rule of law. If the current trend towards the politicization of the federal judiciary continues, then every judicial nomination (not just Supreme Court nominations) can become an ideological battleground. The nomination and selection process will become a strategic game, with each side seeking to create a third political branch. But if the judiciary is just another political branch, then there is no reason to consider its resolution of disputes to be authoritative--to be binding on citizens and the other branches of government. If we produce a judiciary that lacks the judicial virtues and personifies the vice of result-orientation, getting the result the judge wants rather than the result the law requires, we are inviting trouble--because the rule of law is a fragile thing.
Some Additonal Information About Me This post takes me out of my usual role as the author of this blog--legal theorist. I am also the co-author of Destruction of Evidence, the leading treatise on the spolition tort. My treatise and law review articles on the destruction of evidence have been cited by dozens of courts, including several state Supreme Courts. I am also the co-author of the volume of Moore's Federal Practice that deals with the doctrine of res judicata. This volume has been cited by the United States Supreme Court and every one of the thirteen United States Courts of Appeal, including the Sixth Circuit. Finally, I am the author of Virtue Jurisprudence: A Virtue-Centered Theory of Judging and of The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, which set out the theory of judicial selection that I draw upon for this post.
Today on SSRN Here is the roundup:
Mark Drumbl (Washington and Lee) uploads Law and Fear, Fear of Law: Iraq, and Beyond, a working paper.
Srividhya Ragavan (Oklahoma) gives us Can't We All Get Along - The Case For A Workable Patent Model, forthcoming from the Arizona State Law Journal.
Robert Weisberg makes available Restorative Justice and the Dangers of Community, a working paper.
Barber at Oxford Today Nick Barber (also here) (Oxford), delivers a paper titled On Contradictory Legal Rules at Oxford's Jurisprudence Discussion Group today. If you are not familiar with Nick's work, you might check out his Prelude to the Separation of Powers, 60 Cambridge Law Journal 59-88 (2001).
Monday, February 24, 2003
More New Papers on SSRN More new papers went up on SSRN this afternoon:
Workshops Today Here is the roundup of Monday workshops:
Adrian Vermeule (University of Chicago) presents The Constitutional Law of Congressional Procedure at Georgetown's superb Colloquium on Constitutional Law and Theory. What a great topic! You can be sure Adrian has something interesting to say. The following peek at the paper certainly whet my appetite:
Congratulations to Chris Bertram Who reports that he has completed his book on Rousseau. Chris is the author of the very interesting blog Junius.
Kant and Regime Change On Saturday (2002/02/22), I posted a comment (click here) about Kagan's Power and Weakness, which identified United States policy toward Iraq with Hobbes and European pacifism with the position Kant set out in his essay, Perpetual Peace. Andrew Feller writes:"You use the following passage [from Kant] to justify regime change in Iraq:
Today on SSRN Some interesting papers went up on SSRN this morning:
Ross Sandler and David Schoenbrod (New York Law School) put up Democracy by Decree: What Happens When Courts Run Government (forthcoming from Yale U.P.).
Frank Cooper (Villanova) has uploaded Understanding 'Depolicing': Symbiosis Theory and Critical Cultural Theory (forthcoming in the University of Missouri-Kansas City Law Review)
Anthony Lewis on Marbury's Anniversary The New York Times (registration required) has an editorial this morning by Anthony Lewis, entitled Marbury v. Madison v. Ashcroft. The subject: Hamadi.
Marbury v. Madison at 200 or Fuggedabout Marbury Today is the 200th anniversary of Marbury v. Madison. No doubt there are still original things to say about Marbury, but I choose to celebrate this anniversary by remembering another case. The obsessive focus on Marbury (and judicial review of legislation) in introductory courses on constitutional law--and more importantly, on the part of our best constitutional theorists--is misplaced and misfocused. Marbury is a clever opinion, but not a great one--much less a profound one. Marbury may have been a brilliant strategic ploy, but if that is what it was, then it is hardly a shining moment in constitutional history. In many ways, Marbury tells us more about John Marshall's vices than it does about his virtues.
Before Marbury, John Marshall, and the counter-majoritarian difficulty, there was Chisholm v. Georgia. Most American legal scholars have never read this case in full. Decided on February 19, 1793, 10 years and 5 days before Marbury was handed down, Chisholm is most famous for having been overruled by the Eleventh Amendment to the Constitution, and hence may safely be ignored. Chisholm v. Georgia's importance, however, transcends the Eleventh Amendment and even the broad question of federalism that is refracted through the lense of the Supreme Court's constitutional sovereign immunity decisions. Chisholm v. Georgia was the first Supreme Court decision to take on the fundamental question of American constitutional theory. The most important opinion in Chisholm (this was before John Marshall bullied his colleagues into joining his opinions) was that authored by Justice Wilson. He began:
And what about the narrow question in Chisholm?
May a state be sued in federal court? Imagine that you are reading Justice Wilson's argument as it would have been read whe first printed 210 years ago:
Happy Birthday Marbury v. Madsion!
Sunday, February 23, 2003
Post Moved When I originally posted about the anniversary of Marbury, I was in error about the date. February 24 is the correct date for Marbury. Thanks to Eugene Volokh for the link to the Supreme Court's own files. The post originally found here has been moved to Monday, February 24. You can simply scroll up, or click on this link to get it. My apologies for the confusion.
Saturday, February 22, 2003
Federalist Society at Notre Dame Today Law Muse is blogging from the Federal Society Student Symposium at Notre Dame (also here) today. The impressive lineup includes:
Prof. W. Cole Durham, J. Reuben Clark Law School, BYU
Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit
Prof. Richard Epstein, University of Chicago Law School
Prof. John Harrison, University of Virginia School of Law
Mr. Kevin "Seamus" Hasson, The Becket Fund for Religious Studies
Prof. Kyron Huigens, Cardozo School of Law, Yeshiva University
Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
Rev. Barry Lynn, Americans United for Separation of Church and State
Prof. John McGinnis, Northwestern Univeristy School of Law
Prof. Juan Mendez, Notre Dame Law School
Prof. Stephen Morse, Univeristy of Pennsylvania Law School
Hon. Diarmuid O'Scannlain, U.S. Court of Appeals, Ninth Circuit
Prof. Jeremy Rabkin, Cornell University
Prof. Vincent Rougeau, Notre Dame Law School
Prof. Michael Seidman, Georgetown University Law Center
Prof. Amy Wax, University of Pennsylvania Law School
The Case Against Intellectual Property Economists Michele Boldrin and David K. Levine's new book The Case Against Intellectual Monopoly (Chapter One here and Chapter Two here) is certainly stirring the pot. Douglas Clement has a nice essay on the controversy: Creation Myths: Does innovation require intellectual property rights? available from Reason Online. Here is a taste:
Boldrin and Levine say this is a false dilemma. Monopoly rights are not only unnecessary for innovation but may stifle it, particularly when an innovation reduces the cost of expanding production. "Monopolists as a rule do not like to produce much output," they write. "Insofar as the benefit of an innovation is that it reduces the cost of producing additional units of output but not the cost of producing at the current level, it is not of great use to a monopolist." Monopolists, after all, can set prices and quantities to maximize their profits; they may have no incentive to find faster reproduction technologies.
Nasty, Brutish, and Short Jacob Levy at the Volokh Conspiracy posts about the Kagan Controversy. Kagan's Power and Weakness in Policy Review Online, has the following provocative passage:
Porat on Negligence Theory Yesterday Ariel Porat (Tel-Aviv) posted The Many Faces of Negligence on SSRN (It is forthcoming in 3 Theoretical Inquiries in Law, 2003). Porat focuses on a feature of the Hand formula that is oft neglected. Nothing requires that the costs and benefits be associated with the defendant (injurer) and plaintiff (victim). Costs and benefits may accrue to identifiable third parties or society art large. Some of the injury may be borne by the defendant; some of the costs of precaution may be borne by the plaintiff. Porat works through the possibilities and implications in impressive detail. A delight for tort theorists. And More on Negligence from Theoretical Inquiries in Law Porat's article will be in Part II of a Symposium on Negligence in the Law. Part I had George Fletcher's The Fault of Not Knowing, Kenneth W. Simons' Dimensions of Negligence in Criminal and Tort Law, Heidi M. Hurd and Michael S. Moore's Negligence in the Air, and Alon Harel and Assaf Jacob's An Economic Rationale for the Legal Treatment of Omissions in Tort Law: The Principle of Salience.
Friday, February 21, 2003
Dennett on Freedom and Evolution I was browsing the counter at Book Soup on Sunset Boulevard this morning, and what do I come across? Freedom Evolves by Daniel Dennett (Tufts). Ever since I read Elbow Room, I have been an enormous fan of Dennett. In fact, I wrote a big fat law review article, Legal Personhood for Artificial Intelligences, because his work on consciousness was so inspiring. I can't wait to read the book, and I will post as soon as I finish, but in the meantime, here are links to some reviews:
Shavell Hat Trick Steven Shavell (Harvard) uploaded three papers to SSRN this morning. They are: Economic Analysis of Public Law Enforcement and Criminal Law, Economic Analysis of Litigation and the Legal Process, and Economic Analysis of Contract Law.
The Brothers Amar on Stare Decisis and the Supreme Court Akhil and Vik did a marvelous three part series on the role of precedent in the Supreme Court in the context of Bakke and Bowers for their Findlaw column. You can find their posts here (Part One), here (Part Two), and here (Part Three). Of course, the starting point for contemporary discussions in the Supreme Court's decision in Casey, which suggested that the Supreme Court has an obligation to follow its own precedents, even when it believed them to be wrong. Vik & Akhil disagree. Here is the flavor of their position:
This is not to say that Vik and Akhil are wrong when it comes to ideal theory. If the Supreme Court were practising a textualist and originalist jurisprudence, so that it became clear that a shift in constitutional meaning really constituted a correction of a mistake (and mistakes happen for innocent reasons), then a weakened doctrine of stare decisis might actually contribute to, rather than weaken, the rule of law.
New from Oxford Oxford's concentration of legal philsophers is unmatched. If you haven't visited their fine website, you can click here. Here is a roundup of the most recent work from the Oxford jurisprudence shop:
Thursday, February 20, 2003
Brockman on the New Humanists John Brockman is actually optimistic about progress in the humanities! I loved his essay: THE NEW HUMANISTS. Here is a tasty excerpt:
Posner on Douglas You will want to catch up with Richard Posner's review of Wild Bill: The Legend and Life of William O. Douglas by Bruce Allen Murphy. The book reveals (or reminds us of) Douglas's many deep flaws. Douglas was at some level a vicious man--in the Aristotelean sense of vice. What I find most interesting in Posner's review is the following passage:
Political Theory versus Political Philosophy Jacob Levy at the Volokh Conspiracy blogs a very nice exchange between Kieran Healey (and here) and Matthew Yglesias re the sometimes exaggerated but none the less real difference in style and substance between political theory and political philosophy. If political philosophers read closely and agonize over distinctions and political theorists read holisticly and go for big-picture interpretations, where do the academic lawyers fit in the picture? Nowadays, many legal academics have PhDs in philosophy, political science, and history. The historical friction between these disciplines makes its way into the discourse of legal theory. All of this courtesy of Junius.
The "And Now for Something Truly Original" Department: Searle today at Kadish John Searle delivers Social Ontology and Political Power at U.C. Berkeley's Kadish Center today. Searle is one of the most important American philsophers. From his early work on speech act theory to his contributions to the artificial intelligence debates through his most recent work on social ontology, Searle has made lasting contributions. Today at Kadish John Searle is workshopping an 18 page paper. In those 18 pages, Searle suggests that the western political philosophy tradition (despite its many virtues) has missed the point. He then developes a framework for exploration of the underpinnings of political philsophy. His questions are "What is a society in the first place?" and "What sort of power is political power anyhow?" Here is a taste:
Thursday is Workshop Day Here is the round up:
Wednesday, February 19, 2003
Lost Clauses of the Constitution Department: The Invasion Clause, Part I From The Volokh Conspiracy. Art. IV, sec. 4 of the Constitution provides "The United States . . . shall protect each of [the States] against Invasion." Eugene Volokh has a very interesting discussion of this provision and its relevance to the question whether Congress has power to require immunization as a defense against biological WOMD.
Lost Clauses of the Constitution Department: The Invasion Clause, Part II So Eugene got me looking for references to the invasion clause. James Madison had the following to say about the relationship between the militia clause and the invasion clause at the Virginia ratifying convention:
Lost Clauses of the Constitution Department: The Two Invasion Clauses, Part III And lo and behold, there is yet another invasion reference in Article I, Section 10:
Balkin & Siegel on Fiss on the Theory of Equal Protection Jack Balkin (Yale) and Reva Siegel (Yale) have posted The American Civil Rights Tradition: Anticlassification or Antisubordination? on SSRN and you can also get it here. The topic is Owen Fiss's (Yale) famous Groups and the Equal Protection Clause (not published in the Yale Law Journal). And while you are at it, check out Larry Alexander's (San Diego, but he went to Yale) Equal Protection and the Irrelevance of "Groups". And by the way, at lunch today, Larry was sitting next to Yale Kamisar! What's up with all the Yale?
Ackeman Suggests Supermajority Judicial Confirmation Bruce Ackerman (Yale, as if you didn't know) argues for supermajority confirmation of judges (based on the German model) in a Los Angeles Times editorial today. Here is a taste:
Does Better Deterrence Lead to Retributivism? Paul Robinson (Penn) answers yes in Criminal Justice in the Information Age: A Punishment Theory Paradox up this afternoon on SSRN. The premise of Robinson's argument is that postulate that technology may result in a dramatic increase in the likelihood of punishment being imposed, but that the result may be a move, as a matter political reality, to more a more retributivist system. Here is a taste:
Dudziak Squared Mary Dudziak (Southern Cal) posted two pieces to SSRN yesterday. Who Cares about Courts? Creating a Constituency for Judicial Independence in Africa is forthcoming in the Michigan Law Review and Exporting American Dreams:Thurgood Marshall and the Constitution of Kenya is a working paper.
Catching Up With Princeton, Part II And while I was researching Pettit's move to Princeton, I realized that I had not provided a link to the Political Philosophy Colloquium there. This is a very exciting series, with papers this academic year by G.A. Cohen, Bernard Williams, Dana Villa, Jerome Schneewind, and Arlene Saxonhouse so far. Susan Moller Okin is up next week. More on this later.
Today on SSRN: Pettit on Criminal Justice Philip Pettit (Princeton University - Department of Politics formerly Australian National University [where a more extensive homepage still resides]) posted Is Criminal Justice Politically Feasible? to SSRN thing morning. This will be coming ou in the Buffalo Criminal Law Review (Kudos to the review for landing this!). A word about the paper in a moment. This is the first I had heard about Pettit's move to Princeton. Pettit is, of course, one of our most important political philosophers (he will also teach in Philosophy at Princeton). His works include A Theory of Freedom: From the Psychology to the Politics of Agency,, Republicanism: A Theory of Freedom and Government, Not Just Deserts: A Republican Theory of Criminal Justice and Reasons, Rules, and Norms: Selected Essays. This move strengthens Princeton in both politics and philosophy. Back to essay. Pettit's essay investigates an all too obvious fact--that criminal justice systems do not match up well with any of their theoretical justifications. Pettit borrows "the outrage dynamic" from nineteenth-century historian Oliver Macdonagh. Macdonagh was concerned with explaining various reform movement, and argued they went through a three-state sequence. Here is Pettit's summary:
Tuesday, February 18, 2003
Snow Day at Chicago Oren Bar-Gill (Society of Fellows, Harvard) did not make it to the University of Chicago's Olin Workshop series to deliver The Success and Survival of Cautious Optimism: Legal Rules and Endogenous Perceptions in Pretrial Settlement Negotiations.
Stanton-Ife at Oxford John Stanton-Ife (King's College, London) workshopped Public Rationality and Resource Allocation at Oxford's Jurisprudence Discussion Group (another link here) today. I couldn't find an online version.
Michael Perry on Human Rights Michael Perry (Wake Forest) uploaded Protecting Human Rights in a Democracy: What Role for the Courts? to SSRN today. Michael has thought long and deeply about these issues, and, as always, his writing is passionate, insightful, and original. Here is a sense of what he is up to:
Empirical Research on Rules versus Standards Mark Nelson (Cornell, Management) just posted a piece on SSRN that reviews the empirical evidence on the effectiveness of rules versus standards in the context of accounting. Here is the paragraph from the abstract that caught my eye:
Peter Goodrich Is Suspicious--Of Latin This Time I just recieved Distrust Quotations in Latin from Peter Goodrich (Cardozo). (You can find it in the Winter 2003 number of Critical Inquiry.) This very interesting essay goes after the use of the phrase per curium in Bush v. Gore. Peter ends his essay:
Just up on SSRN--Part Two--Robinson and Darley on Views of Criminality Paul Robinson (law, Penn) and John Darley (psychology, Princeton) have just posted Objectivist vs. Subjectivist Views of Criminality: A Study in the Role of Social Science in Criminal Law Theory on SSRN. It is forthcoming in the Oxford Journal of Legal Studies. They report their research, indicating that "lay persons agree with the subjectivist view of modern codes in defining the minimum requirements of criminality, but prefer the common law's objectivist view of grading the punishment deserved for a violation." That's interesting.
Just up on SSRN--Goodman on Subsidies, Free Speech, and New Media This morning, Ellen Goodman (Rutgers, Camden) has posted Bargains in the Information Marketplace: The Use of Government Subsidies to Regulate New Media on SSRN. She explores the question, "why the government might choose to "regulate" new media in the long shadow of the First Amendment by attaching conditions to the speech it promotes, rather than by risking classic First Amendment scrutiny of ordinary regulation?" In particular, Goodman investigates "the 1999 Satellite Home Viewer Improvement Act [in which Congress created] a copyright benefit - a compulsory copyright license that allows DBS operators to retransmit local broadcast stations without charge - in order to induce certain behavior - the carriage of local broadcast stations that a DBS operator might not otherwise provide." This is a fascinating question.
Margaret Jane Radin on Information Tangibility Margaret Jane Radin (or here) has posted Information Tangibility on SSRN. Radin's question is how the demise of the distinction between information and tangible objects will play out, given that many legal categories are based on the notion that information is intangible. If you are interested in property theory, download Radin's stunning essay.
Monday, February 17, 2003
Kagan at Florida State On Friday (what's up with Valentine's Day workshops?), Elena Kagan workshopped her Presidential Constitutional Interpretation at Florida State's faculty workshop series. I couldn't find an online version.
McClain on Faith Based Organizations Last week Linda McClain did an internal workshop at Hofstra on her Unleashing or Harnessing ‘Armies of Compassion’?: Some Questions about the Place of Faith-Based Organizations in Building the ‘Civic Capital Economy’. Grab the paper by clicking on the title. I always like McClain's work.
Chemerinsky at Illinois Today at the University of Illinois, Champagne, Erwin Chemerinsky delivered the David C. Baum Memorial Lecture. Erwin's title was: In Defense of Judicial Review: The Perils of Popular Constitutionalism. I haven't seen a draft, but I am quite sure that Erwin will deliver his usual tour de force performance.
From the Blogosphere: Cross Blogging Norms Those who browse this space will know that I rarely reference other Blogs. Not because I don't read them, but because there just aren't that many legal theory blog entries out there. There are some very interesting Blogs that do touch on legal theory and related matters from time to time. There is, of course, the Volokh Conspiracy and a very interesting blog from Harvard Law student Nathan Oman: A Good Oman. There is, I think, a norm among Bloggers of returning the favor of a link. Thank you Nathan and Eugene.
Law and Psychology Today, Jeremy Blumenthal posted Law and Social Science in the Twenty-First Century on SSRN. Blumenthal describes and critiques interdisciplinary work both by social scientists and legal academics, and has some suggestions for better interdisciplinary communication.
Adler on Rational Agenda Setting Matthew Adler (Penn, visiting at Chicago) has posted a very intriguing piece on SSRN entitled Rational Choice, Rational Agenda-Setting, and Constitutional Law: Does the Constitution Require Basic or Strengthened Public Rationality? The following passage gives a sense of Adler's fascinating project:
Sunday, February 16, 2003
Collective Action and Trust It is Sunday morning, and I am busy working on an article (co-authored with my colleague Karl Manheim) on domain name policy. For the unitiated, the domain name system (which is what allows you to get to this page by entering http://lsolum.blogspot.com/ in your browser) is managed by ICANN, and ICANN is officially committed to a bottom-up, consensus based process for making policy. When it comes to individual users of the Internet and individuals who have only one or two domain names, this bottom-up process creates a pretty severe collective action problem. Which brings me to Dan Kahan's fine article, The Logic of Reciprocity: Trust, Collective Action, and Law, which is available on SSRN (click on the title). As always, you will enjoy and learn from Dan's fine work. (I, however, am quite cross, because it forced me to write an extended footnote explaining why norms of reciprocity have not emerged among individual Internet users and domain name registrants.)
Sunstein and the Holy Grail If you have heard me ramble on about the state of constitutional theory in the American legal academy, you have probably heard me say that the right to welfare was once the holy grail. Liberal constitutional theorists hoped to write the law review article that would convince the United States Supreme Court to declare that every person had a constitutional right to adequate economic resources. Cass Sunstein takes up a similar theme in his article, Why Does the American Constitution Lack Social and Economic Guaranties (available on SSRN, click on the title). Here is a sense of his view:
Christian Legal Theory William Stuntz (Harvard) has a book review entitled Christian Legal Theory forthcoming from the Harvard Law Review and available now on SSRN (click the article title for the download page). Both the book, Christian Perspectives on Legal Thought and Stuntz's review essay are worthwhile.
Today on SSRN: Part Two: Crime and Consciousness And Deborah Denno (Fordham) posted Crime and Consciousness: Science and Involuntary Acts on SSRN today. She investigates the relationship between recent research in cognitive psychology and neuoroscience and theories of criminal responsibility. For an interesting (and I think compelling) philosophical perspective, check out the work of Daniel Dennett, cited by Denno.
Today on SSRN: Part One: 14.5 & Garrett Robert Post (Berkeley) and Reva Siegel (Yale) posted Protecting the Constitution from the People: Garrett-ing Section Five Power on SSRN today. The article provides a pungent critique of the Supreme Court's recent Section 5 jurisprudence, concluding:
Saturday, February 15, 2003
Rosati on Legal Objectivity Connie Rosati (UC Davis, Philosophy) recently workshopped "Some Puzzles About the Objectivity of Law" at the University of Pennsylvania Institute for Law and Philosophy. (If you get her paper from from the Penn website, Connie asks that you not cite it.) This is a thoughtful paper, arguing in part that Jules Coleman and Brian Leiter's categorization of three kinds of legal objectivity (minimal, modest, and strong) does not capture what is at stake in the legal objectivity debates. (By the way, you can get Brian Leiter's Objectivity, Morality and Adjudication on SSRN.)
2003 IVR The 2003 World Congress of the IVR (InternationaleVereinigung für Rechts und Sozialphilosophie) wil be held in Lund, Sweden on August 12-18, 2003. Click here for the Congress website.
Friday, February 14, 2003
Better Late Than Never--Posner at Northwestern Richard Posner workshopped Chapter Two of his forthcoming Law, Democracy, and Pragmatism at Northwestern's faculty colloquium series in November. (Click on this link for the Chapter.) Here is a sense of where Posner is going:
Slippery Slopes, Part Two: Volokh Strikes Again This morning I finished Eugene Volokh's The Mechanism of the Slippery Slope. (Click here for the PDF version or here for an html version.) You can find it in the meat world at 116 Harvard Law Review 1026 & I think it just went up on westlaw. This is a magnificient article, combining Eugene's wonderful prose style with deep thinking and meticulous research. This is one of those articles that is rich with implications; you will never think about slippery slopes in the same way again after you read Eugene's detailed discussion of the microfoundations (the mechanisms) that transform the informal fallacy of the slippery slope into a quite general class of real phenomena that are frequently relevant to policy deliberation. You've probably already read it, but if, like me, you missed the draft, download this masterpiece now.
Slippery Slopes, Part One: Zacchini and the Three Stooges Earlier today, I read a very nice short essay by Robert Shore and Philip Graves that makes a compelling case that the right of publicity has severe first-amendment freedom-of-speech problems--their essay is entitled "Saving the Right of Publicity." They offer a devastating critique of Justice Mosk's reasoning in Comedy III Productions v. Gary Saderup, 25 Cal. 4th 387 (2001), downloadable from findlaw, click here. One of the most annoying aspects of Comedy III is its improper extension of the United States Supreme Court's decision in Zacchini v. Scripps- Howard Broadcasting Co.. Coincidentally, I just finished Eugene Volokh's Slippery Slopes, which also discusses Zacchini as an example of a slippery slope. See 116 Harvard Law Review at 1090. Volokh prefernces his discussion of Zacchini by noting:
New Blog Features The sidebar (to the left) now includes a collection of links to entries from the Stanford Encyclopedia of Philosophy on topics such as legal positivism, legal reasoning, human rights, etc. Thanks to Brian Bix for the suggestion.
Thursday, February 13, 2003
Benkler and the Penguin I just read Yochai Benkler's exciting Coase's Penguin, or, Linux and The Nature of the Firm workshopped at NYU's Faculty Workshop Series and published in the December 2002 issue of the Yale Law Journal. The following passage from the conclusion gives a nice sense of Benkler's direction:
The Economics of Civil Procedure This week Robert Bone's Civil Procedure: The Economics of Civil Procedure arrived in the mail from Foundation Press. I was teaching pleading so I turned to Chapter Four: Which Pleading Rule is Optimal and was delighted by Bob's elegant but easily accessible analysis. Thie Turning Point series from Foundation is just another indication of the profound transformation of American legal education.
Non-felonious Villainies The always-provocative Leo Katz has recently posted Villainy and Felony: A Problem Concerning Criminalization to SSRN (click on the title). This is a good read, and certainly accessible to the non-specialist.
David Bernstein at San Diego Today David Bernstein (George Mason, visiting at Georgetown) is workshopping Lochner's Legacy's Legacy: Sorting Through Myths About the Lochner Era at the University of San Diego today. I couldn't find an online version of this trenchant critique of Cass Sunstein's famous and oft-cited Lochner's Legacy, 87 Columbia Law Review 893 (1987), reprinted in Law and Liberalism in the 1980s, V. Blasi, ed. (Columbia University Press 1991).
Minow at Kadish Today Martha Minow is speaking at the Kadish Center at U.C. Berkeley today. Her paper is entitled PUBLIC AND PRIVATE PARTNERSHIPS: ACCOUNTING FOR THE NEW RELIGION and you can grab it by clicking on this link. Minow is always interesting.
Interesting Work on Property Theory Shi-Ling Hsu recent posted a very interesting piece on the theory of property rights on SSRN. A Two-Dimensional Framework for Analyzing Property Rights Regimes argues that that property rights can be classified by a two-dimensional matrix (use versus exclusion) and (collective versus individual). Hsu's work plays off Michael Heller's Tragedy of the Anticommons from 1998. Hsu's piece is only mildly technical. If you do any work on entitlements, you are likely to see some useful implications.
Wednesday, February 12, 2003
Is it better to be powerful or lucky? . . . was the title of a classic essay by Brian Barry, available in his collection Democracy and Power. Steven Lukes and LaDawn Haglund take up these issues in Power and Luck, which Lukes delivered at the Colloquium in Legal and Social Philosophy at University College London today: here is a link to the paper. The following passage gives a flavour of their argument:
The Precautionary Principle I must confess to being mystified by the popularity of the so-called precautionary principle as a general decision heuristic for cases involving Knightian uncertainty (or ignorance, as opposed to risk) in enviromental and public health policy analysis. For an interesting recent discussion in the context of mad cow disease, see Institutions and the Precautionary Principle: The Case of Mad Cow Disease by Marcello Basili and Maurizio Franzini. By the way, if you find the terminology in this arena opaque, here is a wondeful website, with a very cogent historical summary: Uncertainty, Information, and Games.
Gardner and Macklem on Value Humanism Timothy Macklem and John Gardner's elegant essay Value, Interest, and Well-Being explores value-humanism, according to which "the value of anything has to be explained in terms of its potential to contribute to human lives." Their question is a very deep one, which I might reframe as "Is there a highest humanly achievable good?" Perhaps not suprisingly, they come around to some thoughts about Aristotle on the noble (kalon) at the very end. A must. Get it by clicking here.
Tuesday, February 11, 2003
Value Theory and Economic Analysis of Criminal Law I just finished reading Dan Kahan's essay, The Theory of Value Dilemma: A Critique of the Economic Analysis of Criminal Law, which you can grab from SSRN by clicking here. Read this! Dan argues that law and economics lacks the resources to disagree with what he calls intrinsic value retributivism--the view that punishment should be proportionate to the evil of the crime. A key piece of his argument is "To make optimal deterrence judgments, society needs a theory of value. That theory of value necessarily is the aggregation of citizens' intuitions about the rephrensibility of differnet crimes." (Is that right? Haven't many law and economics sorts been moving to a two-level theory--a la Hare--which locates utility in the legal analysts' valuation of individual preference functions over states of affairs?) The paper is a great read.
Cognitive Errors Kahneman and Tversky are all the rage, and "behavioral law and economics" is beginning to pop up in the most unexpected places. I was recently reading an essay on the constitutional law of emergency powers and ran into the (obligatory) discussion. There is a very nice review essay by Cass Sunstein of Heuristics and Biases: The Psychology of Intuitive Judgment edited by Daniel Kahneman, Paul Slovic, amd Amos Tversky, which you can grab from SSRN by clicking on this link. If you missed it, check out Predictably Incoherent Judgments by Sunstein and Kahneman with David Schkade and Ilana Ritov.
Noah Feldman on Equity Noah Feldman gave a very interesting paper at the NYU Colloquium in Law, Philosophy and Political Theory in the fall. Here is a link to the paper. The following passage suggests the kind of issue that Feldman explores:
Legal Positivism Brian Bix's entry on Legal Positivism in the Blackwell Guide is superb. If you would like an elegant summary of the latest doings in the somewhat byzantine world of inclusive and exclusive legal positivism, grab the downloadable version from SSRN by clicking this link.
Wednesday, February 05, 2003
The Rhetoric of Property and the Supreme Court's Decision in Eldred Larry Lessig's Blog recently refers to a nice piece on the American Open Technology Consortium website. "Going Deep" argues that the United States Supreme Court's decision in Eldred v. Ashcroft can be explained in part by understanding the way that the concept of "property" functioned as a rhetorical trope in the arguments about the constitutionality of retroactive term extensions. Here is Going Deep. And here is Larry's thoughtful reaction. Let me say, first that the property trope is important and explanatory--up to a point. There is, however, another rhetorical trope that has great explanatory power--”tradition.” The Eldred majority was very concerned with the long tradition of retroactive extensions. This trope is connected to, but distinct from, the originalist (first-Congress) argument that is another central piece of the majority opinion. There is, of course, a nice synergy (for the pro-CTEA side) between the property trope and the tradition trope. They work together to suggest that the anti-CTEA forces are indeed “radical.” The idea of tradition has played a very important role in recent constitutional discourse--especially on the court. Constitutional theory has been slow to recognize the power of constitutional arguments from tradition. And the court, not unexpectedly, has assumed rather than explained the theoretical basis for tradition as a key constitutional idea. But if you reflect for just a moment, it will become clear that constitutional arguments from tradition are powerful indeed--for reasons relating to the rule of law, predictability, and stability. This is itself an interesting topic, but I want to get back to Eldred. Advocates of the CTEA were able to effectively use "property" as a key trope, in a set of arguments that radicalized and marginalized the arguments for Eric Eldred. But, this rhetoric can be turned around. The tradition argument does not play in the context of a challenge to the anti-circumvention provisions of the DMCA. Indeed, Justice Ginsburg virtually invites an argument that the DMCA lacks the built-in protection for free speech provided by the fair use doctrine in the section of her opinion on the first amendment argument against the CTEA. The DMCA is not traditional. Indeed, important and influential thinkers on the right are deeply troubled by the DMCA, precisely because it interferes with traditional property rights. See Randy Barnett, Reds in Suits: A review of Larry Lessig’s, The Future of Ideas, in Regulation, Fall 2002, vol 25, p. 64. Here is a link to Reds in Suits. The DMCA is all about a radical break with tradition and interference with traditional property rights.