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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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Wednesday, April 30, 2003
Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts
A Tale of Two Law Clerks Like all good postmodern tales, this one begins out of sequence. So let’s . . .
The clerk sat before the desk. On the other side, gazing out the window at the Mall, sat the Justice, white hair and deeply lined black face--at 93 years of age, still hale. It was the clerk’s first day, and she worked up the courage to ask a question. Two of her colleagues sat nervously beside her. “Your honor,” she began, “can you tell us about life tenure. I mean, Professor Oman told us about the Crisis of ’03, but you actually lived through it. Is it true that you are the only federal judge who still has life tenure?” “Not yet,” the Justice laughed. “Jeff Sutton is still technically on senior status. But almost.” He turned away from the clerk, and stared out the window at the black obelisk occupying the space where the Capitol once stood. “I know that people say it started in ’03. Nate, er, your Professor Oman, probably knows more about the political part of that than I do. It can be pretty isolated here.” Justice Clarence Thomas swiveled and faced the clerk, “And anyway, it really all started back in 1985, when the Ninth Circuit decided a case called United States versus Woodley. It was an en banc and in those days that meant something. Woodley, you know, held that recess appointments to federal courts are constitutional, and boy did that become important. You see . . .” Reverse--The Year: 1985. The Place: Los Angeles, the 12th Floor of the Old United States Courthouse. The clerk sat before the desk. On the other side, gazing out the window at the mountains outlined in the smog sat the Judge, a vigorous and alert man in his 50s. The clerk was in the office to get an assignment. It was early in his clerkship, and he was eager and just a bit nervous. “Woodley, said the Judge. “I’d like you to work on United States versus Woodley. It’s gone en banc, and the Court has voted to reverse the panel decision. My decision!" “What’s it about?” asked the clerk. “It’s about whether Article III of the Constitution means something,” answered Judge William Norris. “And I think it does. It’s about whether judges without life tenure can serve on Article III courts. And I think they can’t. Here is what happened . . . ” Pause Before I go any further, I need to make a disclosure. I was the second clerk. I drafted William Norris’s dissenting opinion in United States v. Woodley. That fact makes it difficult for me to be completely objective about the question that I feel compelled to address in this post: Is it constitutional for the President to make a recess appointment to an Article III Court? In 1985, I believed that the independence of the federal judiciary served a crucial constitutional function, and I still believe that today. In 1985, I saw that it was not easy to make out the case that recess appointments to the judiciary are unconstitutional; those difficulties loom even larger today. I will do my very best to be objective, but you should know that I have been thinking about this issue for almost 18 years, that my work is at stake, and that my pride is on the line. I will return to our Tale of Two Clerks at the end of this post, but for now, on to the analysis!
The Good Behavior and Undiminished Compensation Clauses: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." U.S. Const. art. III, § 1. Interpretation What do these clauses mean? When I drafted the dissenting opinion in United States v. Woodley, here is what I thought. The usual understanding of Article III, Section 1, is that it confers life tenure on Article III judges. From that fact, a corollary could be inferred: the good behavior clause prohibits anyone without life tenure from serving as an Article III judge. Using similar reasoning, we could infer from the guarantee of undiminished compensation a prohibition on anyone whose compensation might be diminished from serving as an Article III judge. Recess appointees lack life tenure and Congress has not guaranteed them undiminished compensation--in fact, Congress has tried to deny some recess appointees any compensation at all. Therefore, the text of Article III, Section 1, prohibits recess appointees from exercising the judicial power of the United States. But what about the recess appointments clause? That clause applies to "all Vacancies that may happen during the Recess of the Senate" and thus, the recess appointments clause would appear to apply to judicial vacancies as well. How can we reconcile the language of the two clauses?
--Absolute versus Qualified. We might try to argue that the recess appointments clause is absolute, and therefore, the recess appointments clause must give way. But this argument does not work either. The recess appointments clause says "all vacancies" and therefore is every bit as unqualified as is Article III. In fact, the recess appoints clause by using "all" seems to have a bit of an edge on the basis of this argument. The Impeachment Clause: The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. U.S. Const. Article 2, § 4. The guarantee of life tenure for confirmed Article III judges results from the operation of the good behavior clause with the impeachment clause. Read together they lead to the inescapable conclusion that once confirmed an Article III judge cannot be removed except by impeachment--and hence, confirmed Article III judges have life tenure. But what about recess appointees? Once again, we can proceed intratextually, adding now the recess appointments clause to the mix. Recess appointees have terms that are guaranteed through the end of the next Session of the Senate, because they are civil officers of the United States, they may only be removed before that date by impeachment. This interpretation reconciles the three clauses. The good behavior clause interacts with the impeachment clause and the recess appointments clause to produce a consistent and coherent meaning for the text of all three provisions. Hold your horses! What about the corollary of the good behavior clause? Doesn't that prohibit anyone without life tenure from serving as an Article III judge? I wish it did. But here is the problem. The corollary isn't anywhere in Article III. The good behavior clause is it. That's all she wrote. The corollary accounts for life tenure for confirmed judges, but results in a direct collision between two clauses, if it is applied to recess appointees. The alternative interpretation that I have offered here accounts for life tenure, and makes the constitution consistent. The text of the Constitution does not support the proposition that recess appointments are unconstitutional. When I drafted the dissenting opinion in Woodley, I finessed this problem by arguing that the text was inconclusive. I still believe that. By itself, the text does not close the door on the argument that recess appointments are unconstitutional. We still need to consider history and function.
What argument can be made in reply? Here is the relevant text from Judge Norris's dissent:
Tradition and the Rule of Law. History has another role to play in Constitutional interpretation. The Supreme Court will frequently defer to a long historical tradition or practice--even though there are arguments that the tradition contravenes the text or spirit of the Constitution. There have been a lot of recess appointments over a very long time. Although the argument has occasionally been made that recess appointments are unconstitutional, that argument has almost always failed. The Ninth and Second Circuits have rejected constitutional challenges to recess appointments; no court of appeals has sustained a challenge. Republicans and Democrats have made use of the recess appointments power. Supreme Court Justices have been recess appointees. Chief Justices have been recess appointees. If a long historical tradition suggests that a practice is constitutional, then this provides additional evidence that recess judicial appointments are constitutional. The Woodley dissent essentially conceded this point, but argued that it was outweighed by an important constitutional value--judicial independence.
Deadlock When I drafted the dissenting opinion in Woodley it seemed to me that recess appointments to the judiciary served no valuable constitutional function. The only good reason for recess appointments, I thought, would simply be efficiency and convenience. Recess appointments would allow judicial vacancies to be filled during the then-longer recesses of the Senate. In the event of a freak accident, it could take weeks for the Senate to reconvene. But today, the Senate could come back in session in a day or two in a true emergency. And the federal judiciary and the Supreme Court are both much larger, and hence under almost any imaginable circumstance they could function for weeks or even months with vacancies unfilled. So, it seemed to me that the recess judicial appointments were an unqualified bad as a matter of constitutional policy. But I now see this issue through different eyes. Step back for a moment and consider the constitutional values implicated by recess judicial appointments:
--Judicial Independence. The good behavior clause serves to promote the rule of law by giving judges independence from the political branches. --Functional Continuity. The recess appointments clause insures that the judiciary can continue to function in the event the Senate cannot or will not confirm nominees to judicial office.
Phase One: Recess Appointments as Retaliation for Democratic Obstruction The judicial selection process is in a downward spiral of politicization. Republicans denied President Clinton floor votes on many of his nominees and Democrats have escalated, resorting to wholesale use of blueslipping and the filibuster. What's next? Perhaps everyone will wake up and smell the coffee. It may be that Democrats and Republicans are about to reach a historic compromise on the confirmation process, but as of today, it sure doesn't look like everyone is about to become cooperative. So let's try a thought experiment. What if President Bush did threaten the use of recess appointments and the Democrats not only didn't back down, but escalated--filibustering every nominee for judicial office? The President would have few alternatives. He could back down and start nominating judges whose political ideologies were acceptable to Democrats, but that hardly seems likely. He could allow the Democrats to block all nominees and simply allow judicial vacancies to go unfilled until after 2004--but that seems both irresponsible and the equivalent of political surrender. He could get lucky and persuade a few Democrats to vote for cloture--but so far that strategy has been unsuccessful. Or he could make recess appointments. Let's suppose that is the option chosen by the President. Phase Two: Democratic Reaction How would the Democrats react to wholesale use of the recess appointments power? Here are the options:
--Democrats could try the litigation options, but that seems unlikely to be successful, although there might well be political benefits from the effort. --Democrats could continue to filibuster and make the recess appointments an issue in the 2004 election. After pursuing the litigation strategy, this seems like the most likely outcome. So what would happen next?
+ Variation 1-B: Continue to filibuster the Presidents nominees--with the President countering by continuing the practice of making recess appointees. --Scenario Three: If the President is not reelected, and the Democrats do not gain control of the Senate (or fall short of 60 votes), then Republicans have two choices:
+ Variation 3-B: The Republicans filibuster the Democratic President's nominees. This puts Republicans in the same position as the Democrats were in Phase Two and the next big event would be the election of 2008.
On the Other Hand But wait a second. The way that we got into this mess begins with a judiciary that is already being politicized. If both parties are willing to appoint virtuous judges, who are committed to the rule of law, relying on text, history, and precedent rather than personal ideology, then we would never enter a downward spiral of politicization. The downward spiral--the confirmation wars--are a symptom of the deep politicization of the federal judiciary that has occurred over a period of decades. Once the parties woke up to the fact that federal judges were becoming political actors, then they realized that political control of the composition of a judiciary with life tenure was one of the great prizes of control of the Presidency. But once the parties realize that, a further realization follows. The ability to block judicial nominees is one of the great benefits of holding at least 41 seats in the Senate. Here is the crucial insight. Once the judiciary has become politicized, it is no longer clear that lifetime tenure is justified. We want lifetime tenure to safeguard the rule of law. Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized. If the judiciary is just another political branch, then it should be politically responsive. Let me repeat that idea in a more pungent form. If the judiciary is just another political branch, then it is appropriate for judges to be turned out of office every four years. Politicized judges pose a countermajoritarian difficulty. Politicized judges with life tenure are the most dangerous branch. But the recess appointments clause when combined with advice and consent and the filibuster provides a self-correcting constitutional mechanism. If the judiciary becomes thoroughly corrupt and partisan politics prevents the political branches from agreeing on the appointment and confirmation of judges devoted to the rule of law, then the constitutional solution is to replace lifetime tenure with judicial terms for a limited period of years--and that solution is already available in the recess appointments clause. Let me be clear: I am not arguing for recess judicial appointments. I am arguing against them. But I am arguing against recess judicial appointments because I am in favor of the rule of law. If I am given the Hobson's choice--politicized judging with life tenure or politicized judging without life tenure--the choice is painful but clear. The point of the thought experiment is that we should avoid the Hobson's choice. How can we avoid it? Compromise. Both parties should agree on two principles of judicial selection. Principle One: judges should be selected on the basis of their possession of the judicial virtues, and especially the virtue of justice--fidelity to the rule of law. Principle Two: each party should agree to allow the nominees of the other party to come to a floor vote, and Senators should vote to confirm--unless there is good evidence that the nominee lacks the constituent elements of good judicial character. The possible world of Article III without Life Tenure is not the only ending point for the downward spiral of politicization, but contemplating this possibility can and should serve a salutary purpose. It is in the long run interest of both political parties to call off the confirmation wars. The time for escalation should end, and the time for compromise should begin.
Back to the Future And in 2035 . . . . . . and Professor Oman suggested that the crisis of 2003 actually led to the solution of the countermajoritarian difficulty," the clerk continued, no longer nervous but excited by the exchange of ideas. "I'm not so sure about that," the Justice replied. "But I do know that this place is a whole lot different now that Justices come and go every couple of years. Why, some of these young ones, I hardly learn their names before a new bunch arrives." He swiveled again, and looked down through five inches of bullet proof glass upon the Mall, eerie now in its emptiness. "Yep, it sure has changed." For more on the confirmation wars, see Breaking the Deadlock: Reflections on the Confirmation Wars. For a guide to all my posts on judicial selection, click here. Hasen on Rationality in the Confirmation Wars Rick Hasen has an excellent post on the rationality of the Democrat's decision to filibuster Estrada and the possibility that the President might use the recess appointments power. New Papers
Jonathan Zittrain and Benjamin Edelman (Harvard) offer Internet Filtering in China. Vincy Fon (George Washington, Economics) and Francesco Parisi (George Mason) offer two papers: Tuesday, April 29, 2003
The Downward Spiral of Politicization of the Judicial Confirmation Process: The Recess Appointments Option
The Next Step In the short run, the politicization of the confirmation process is political theater. Both parties posture and play to the media. But the political theater phase of the confirmation wars is about to end. There are at least two reasons why the sitzkrieg cannot continue. The first is that the judiciary is becoming depopulated; judicial emergencies have already been declared in several circuits. The second reason is that the battle is about to move to the Supreme Court. If William Rehnquist and Sandra O'Connor resign this summer, as is widely expected, the mother of all confirmation battles will be joined. There is no reservoir of good will between the parties to draw upon--that has been depleted over the course of the last few months. This will be an intense, bitter, partisan fight--with the memory of Bork and Thomas steeling Republican wills for an all-out, no-holds-barred contest with Democrats who see the crucial vote to overrule Roe v. Wade as potentially on the line. So what's next? Consider three possibilties:
Depopulation of the Judiciary The second alterantive is depopulation of the judiciary. The stalemate could persist. Democrats could filibuster any Republican nominee who isn't "moderate," and the President can stop sending "moderates" to the Senate. The Supreme Court can function with seven Justices. The lower federal courts could limp along with fewer and fewer judges. Of course, the depopulation option cannot last for very long. On the one hand, the ability of the courts to do the nation's judicial business will eventually begin to suffer substantial impairment. On the other hand, the depopulation of the Supreme Court will have obvious political consequences. For example, if Rehnquist and O'Connor were to resign and not be replaced--the ideological tilt of the Court would move dramatically to left, with Stevens, Souter, Ginsburg, and Breyer forming a working four Justice majority. The pressure to break the stalemate would begin to build. And this leads me to the third option. Recess Appointments The Recess Appointments Clause, Article II, Section 2, Paragraph 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." My colleague, Rick Hasen, started blogging about the wholesale use of recess appointments some week past. And that option has been discussed by Hugh Hewitt in an essay in the Weekly Standard. The use of recess appointments to the judiciary has ebbed and flowed since 1789, but it has been rare in recent years. The reason is that the Senate is jealous of its constitutional perogative--the advice and consent power. By statute, most recess appointees cannot be paid, and the Senate, from time to time, reminds the President that recess appointees are unlikely to be confirmed. Given the uncertainty of confirmation, most of those qualified to serve as federal judges or Justices of the Supreme Court are likely to be unwilling to accept a recess appointment. Hence, the use of the recess appointments clause has been sparing, and its wholesale use has been deemed impracticable.
If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees. But Where Would This Lead? Wholesale recess appointments would constitute a radical change in the way that judges are selected. Where would this lead? I will have more to say about this topic in another post. For now, here are some possibilities worth thinking about:
Retaliation But Democrats may not be in the mood for compromise. In fact, they might see this move by the President as exactly what the Democratic party needs to activate its base. Of course, activating the base may not be the best strategy to elect a Democratic President in 2004--an active Democratic base may produce an unelectable Democratic candidate. But an active base has another side effect--a massive influx of campaign contributions for incumbent Democratic Senators and Representatives. And the Democrats can open a second front. There is a litigation strategy. Howard Bashman of How Appealing has argued that recess appointments to the judiciary violate the good behavior and undiminished compensation clauses of Article III (see also here). The host of activist Democratic lawyers that fought the legal battle for Gore in Florida could be reactivated, and their Republican opponents could join the fray. The issue would eventually land where? Why in the Supreme Court, of course, with two of the sitting Justices (the replacements for O'Connor and Rehnquist?) possibly themselves recess appointees. They might recuse themselves, but then again, they might not. With the future of the Republic on the line, this case would make Bush v. Gore look like a carnival sideshow. New Look for the Election Law Blog Check out Rick Hasen's new look at the Election Law Blog. By the way, it looks absolutely terrific, Rick. I'm jealous. The Confirmation Wars I have been arguing for some weeks now that the judicial selection process is in a downward spiral of politicization. Further evidence comes today from Howard Bashman who reports on an article from Rollcall:
Monday, April 28, 2003
New from Online Papers in Philosophy Alex Rosenberg (Duke, Philosophy) posts On The Priority of Intellectual Property Rights, Especially in Biotechnology. From the abstract:
Monday Workshop Max Kolbel (Birmingham) presents Indexical relativism vs genuine relativism at Oxford's Seminars on Moral Philosophy series. Fontana on Comparative Constitutionalism David Fontana has posted Refined Comparativism in Constitutional Law on SSRN. Here is a taste from the abstract:
Hot Downloads Department: Weatherson on Land Disputes The issue is how to resolve disputes between nations or ethnic groups--a topic of no small importance. Hillel Steiner and Jonathan Wolff had a paper in Analysis. The gist of their idea is to conduct an auction--by the way, scroll down for Paul Klemperer's latest paper on auction theory. Here is Weatherson's summary:
New on SSRN A slew of new and interesting papers on SSRN. Here is the roundup:
A Transactions Cost Theory of Patent Law
Wolff on Rawls On the The Philosophers Magazine, Jonathan Wolff (University College, London) has a very nice piece entitled A Theory of Justice: the book that changed everything. Here is a taste, but read the original:
New from Economic Theory News Michele Piccione (London School of Economics) and Ariel Rubinstein (Princeton and Tel Aviv, Economics) have uploaded Two Tales of Power and Distribution of Wealth in the Jungle. Here is an abstract:
Sunday, April 27, 2003
The Desert and the Jungle: Alan Schwartz and Robert Scott on Contract Theory
But What Is Going On Here I find most of Schwartz and Scott's story to be compelling. In particular, their argument for the plain meaning approach to the interpretation of commercial contracts was very persuasive. But stepping back for a moment, I find large portions of their argument puzzling or confusing--although I think I agree with their core normative positions. Let me start with their basic theoretical notions--the idea of complete contract and a default rule. Before I start my analysis, it is probably useful to lay out some of Schwartz and Scott's basic ideas and arguments. Here goes:
--"Incomplete contracts sometimes produce law suits because parties will not always agree ex post regarding the treatment of omitted contingencies." (p. 60) --"The commonly held view is that but for the cost parties would write complete contracts." (p. 62) Default Rules and Mandatory Rules From this picture, it follows that the law of contracts contains default rules and mandatory rules. A default rule is a rule of law that fills a gap in an incomplete contract; default rules can be overriden by the terms of a contract, and hence, if a contract is complete, it completely excludes the operation of default rules. A mandatory rule is like a default rule, except that it trumps the terms of a contract. For example, a contract that with a liquidated damages clause that called for the breaching party to forfit a pound of flesh in the event of breach would be uneforceable because it would violate a mandatory rule. Schwartz and Scott's Argument for Minimizing the Number of Default Rules Schwartz and Scott argue that contract law should contain very few default rules and standards. Let me quote three key paragraphs. The first sets out criteria for a good default rule. The second argues that because default rules would be too expensive, contract law relies on default standards instead. The third paragraph :
Desert Landscapes How might we capture the core intuition behind Schwartz and Scott's theory of contracts between firms? Let us analogize current contract law to a lush jungle, populated by a dense undergrowth of default standards and a forest of default and mandatory rules. For firms to build a contract in this jungle, they must hack their way through the undergrowth--cutting down default standards willy nilly and building their agreement around the many awkwardly placed mandatory rules of contract. Schwartz and Scott might be said to long for contract law that is like a desert landscape. Surveying this sparse Schwartzscottian Desert, we would see a few scattered but attractive default rules along with the rare but prickly mandatory rule, usually spied only atop a distant dune. Building a contract in the desert is cheap by jungle standards. Because the mandatory rules are few and easily avoided, it is a simple task for firms to find a suitable plot upon which they can build their agreement. The default rules that might impinge on one’s contract can be incorporated in the structure or cleared away without undue expense. The desert floor is bare and solid—already a suitable foundation for building an agreement. It is no wonder that firms would prefer to build their contracts in desert landscapes.
"States of the World" and "Obligations of the Parties" We also need to define two more elements that enter into the notion of a completely specified contract: state of the world and obligations of the parties. First, stipulate that a state of a possible world is a unique time slice of that world: thus, world Wz at time Tq is at state S[WzTq]. Second, stipulate that obligations of the parties to a contract for a given state of the world will be a set of descriptions O that contains for each party, p1, p2, . . . pN, the obligation descriptions o1, o2, . . . oK that pick out the action types the occurrence of which is required by the contract. Thus, party p1's discrete obligation o1 would be p1o1. Given these definitions, a completely specified contract will take the form of a list of ordered pairs. One member of each pair will be a state of some historically and nomologically accessible possible world and the other will be a specification of the obligations of the parties for that event type. Let the equal symbol (=) represent the relationship between the two members of the ordered pair. A completely specified contract for n parties with k obligations in q time slices of z possible worlds would need to spell out all obligations of all parties for all time slices of all nomologically and historically accessible possible worlds. For just one time slice of one possible world and some number of parties N, we have
Default Rules? Conceptual Default! A complete set of default rules simply is a complete contract minus the particular provisions that identify the parties and their core obligations. If contract law is to provide default rules for all situations in which an actual contract falls short of the ideal of a fully specified contract, then contract law must either contain an infinite number of rules or a finite number of rules or standards that predetermine outcomes in an infinite number of cases. A core assumption of Schwart and Scott's argument is that a complete set of default rules or standards that provide determinate guidance for the resolution of cases is impossible. And they are right. The dream of a completely specified contract has taken on a nightmarish quality. It is not clear that the idea of a contract that specifies the obligations of the parties for all possible futures states of the world makes sense. Reconceputalizing Default Rules We need to rebuild the idea of a default rule on foundations firmer than the incoherent idea of a fully specified contract. Once we severe that tie, we can develop a workable albeit less ambitious concept. The key move is to figure out what default rules really do. My suggestion is that default rules perform three functions, or putting it a bit differently, default rules fill three kinds of gaps:
Gap Type Two. Contractual Generality and the Variability of Experience. Consider a second and related reason for so-called "gaps." Contracts are written in relatively general language, but human experience is enormously variable. Recall Aristotle's classic discussion of equity in Chapter Ten of Book Five of the Nicomachean Ethics:
Gap Type Three. Recurring Omissions of Anticipatable Contingencies. Consider a third source of contractual gaps, the omission by the parties of an anticipatable contingency. Of course, such examples are familiar from contracts casebook. These are the garden-variety gaps with which we are all familiar. And of course the law does provide default rules for such recurring gaps. In a common law system, such gap filling by default rules is almost inevitable. The fact patters recur, opinions are published and particular rules governing omission types begin to form. One important default rule that applies to most contracts is law of contract damages--the expectation measure fills a gap in contracts without liquidated damage clauses (or other damage provisions). Even more ubiquitious is the set of rules that define the rights and obligations of the parties in the event that the contract is invalidated. Once again, the law provides a default for an anticipatable contingency--the invalidation of the contract itself. Of course, this default rule is an absolute nececessity. Although the parties could attempt to enter into a second order contract that established the consequences for invalidation of their first order contract, you have already seen that there is an infinite regress looming. What if the second order contract was not properly formed or is invalidated for some other reason? Well, the parties could form a third order contract, but . . . I Have Good News and Bad News The good news first. Sure, complete and utter incoherence is not a good-making feature of theories, but in this case, there is a fix available. What Schwartz and Scott really mean is that of necessity default rules must be formulated so as to be contingent on only a few properties of the world. The problem isn't that there are an infinity of possible worlds. Rather, the problem is that each possible world can be described in an infiinite number of ways and contains a vast (but not infinite) number of entities, events, and actions. A default rule cannot be formulated as a complete description of the world. Default rules must be sparing in their formulation. When compared to the complexities of the world, legal rules are very sparse indeed. This is true even of the Internal Revenue Code--which despite its enormous complexity is vanishingly simple in comparison to the vastly complex world of human conduct it attempts to regulate in exquisitely fine-grained detail. So Schwartz and Scott are not in trouble. We might say that the surface structure of their point is incoherent but the deep structure is sound. And Now for the Bad New But now that we understand the nature of default rules, it turns out that that one of Schwartz and Scott's claims is self-refuting. Schwartz and Scott claim that default standards are not so hot, because the parties will try to contract around them. But there is no escaping default standards. Contracting without default standards is inconcievable, and trying to concieve of contract law without pervasive default standards is an enterprise fraught with incoherence and confusion. And so it turns out that what Schwartz and Scott are advocating is not fewer default rules or default rules that condition on fewer states of the world. What Schwartz and Scott are advocating is different default rules. So, for example, they offer an argument for a method of contract interpretation, i.e., a "textualist interpretive style, one that restricts the evidentiary base to not much more than the written." And this just is a default standard. Default because Schwartz and Scott's own arguments against mandatory rules tell us that this interpretative method should give way if the parties so stipulate. Standard because the applicability of "textualist interpretation" to particular situations is defined ex post and not ex ante (and that is how Schwartz and Scott define standards as opposed to rules). And One Thing More . . . One more piece of bad news. If you have gottent this far, you are probably wondering about the following question. If Schwartz and Scott advocate fewer default rules, then what will they do about the gaps? There must be some rule of law to deal with such situations--unless Schwartz and Scott would relegate the parties to self help. Here is what they say:
Freespace and Freewill Timothy Sandefur of Freespace reacts to my post from the Roundtable on Moral Luck at USD. Among other things, Sandefur praises Daniel Dennett's new book, Freedom Evolves--right on the money. New on SSRN There are a few new papers this weekend:
Joseph Aldy (Harvard, Economics), Scott Barrett (Johns Hopkins, School of Advanced International Studies) and Robert Stavins (Harvard, Kennedy School) upload Thirteen Plus One: A Comparison of Global Climate Policy Architectures. From the abstract:
Downward Spirals Department The rhetoric over the confirmation wars continues to heat up. As those with frequent blogsurf miles know, my view is that we are in a downward spiral of politicization that has dangerous long term consequences. The evidence in support of this hypothesis continues to pile up.
The Criteria for the Filibuster What are the criteria that trigger a Democratic Filibuster? Taking the Time Magazine story at face value, a filibuster is justified if the candiate is "highly ideological." How do we know that a candidate is "highly ideological"? Evidently, a three-step process of reasoning leads to this conclusion. First, from the fact that Sutton and Kuhl advocated postions X and Y as government lawyers, we can infer that they are ideologically committed to X and Y. Second, from the fact that they are ideologically committed to X and Y, we can infer that they would decide on the basis of their ideology if a case involving X and Y came before them. Third, positions X and Y are "highly ideological in nature." All three steps in this chain of reasoning are suspect. Consider the case of Jeffrey Sutton first. Sutton Jeffrey Sutton served as the Solicitor for the State of Ohio: Time observes that Sutton's "state's rights advocacy has helped limit the scope of disability, age and race discrimination statutes." Presumably, Time refers to positions taken by the State of Ohion in Eleventh Amendment sovereign immunity cases. The question is whether the Constitution (especially Article III's grant of judicial power and the Tenth and Eleventh Amendments) gives the states sovereign immunity from claims brought under federal laws creating private causes of actions against employers that discriminate on the basis of disability, age, or race. I am no fan of the Supreme Court's Eleventh Amendment juirsiprudence. I think that both the plain meaning of the text of the Eleventh Amendment, and the historical evidence about its original meaning are inconsistent with the key precedent, Hans v. Louisiana, and with the Supreme Court's recent decisions in cases like Seminole Tribe. But Hans has been on the books for a century, and Sutton, as the lawyer for the State of Ohio, would naturally argue the position that favored the interest of his client. The first step of the inference, from Sutton's advocacy of the interests of his client to his personal beliefs, is obviously invalid. This argument does not pass the laugh test. But even if it were correct, it does not lead to step two: if Sutton were ideologically committed to an expansive view of state sovereign immunity, it would not follow that Sutton would decide Eleventh Amendment cases on the basis of his personal political preferences. Without more evidence about Sutton's character, this argument is quite simply awful. It has no legs. What about the final step in the argument: If Sutton were ideologically committed to an pro-state's rights interpretation of the Eleventh Amendment would that make him an ideological extremist? This is actually a tricky question. Consider two possibilities: (1) If Sutton is committed to following Supreme Court precedent when he serves on the 6th Circuit, then he is simply committed to doing his job in accord with the rule of law. (2) If Sutton is committed to expanding the Eleventh Amendment protection of the states, even when such expansion is foreclosed by the Supreme Court's decisions or prior Sixth Circuit precedent, then he lacks the virtue of justice--the disposition to make judicial decisions on the basis of the law rather than personal preference. So far as I can tell, the current Democratic position does not differentiate (1) from (2). That is, Democrats are willing to filibuster candidates on the basis that they will follow Supreme Court precedent with which the Democrats agree on ideological grounds. If this is correct, it represents yet another escalatory move in the confirmation war. Opposition to Sutton on the basis of possibility number two is, of course, completely justified. But so far as I can tell, no one has produced a decent argument for two. Kuhl Carolyn Kuhl was the Deputy Soliciter General under Charles Fried. In that role, she was a lawyer for the United States Government (under President Reagan) in cases before the Supreme Court. She participated in the briefing for the Reagan Adminsitrations attempt to get the Supreme Court to overrule Roe v. Wade. I opposed that move. Although I think that the ultimate foundations for the original Roe decision are suspect, my view is that the Supreme Court should almost always adhere to its prior decisions. The rule of law cannot be restored by a wholesale program of overruling precedents with weak foundations. So I disagree with the Reagan administration's decision to seek the reversal for Roe. Does it follow that I should regard Carolyn Kuhl as an ideological extremist? As her boss, Charles Fried, wrote to the New York Times a few days ago, "You [the New York Times] characterize Judge Kuhl as "outside the ideological mainstream" because, among other things, she joined my brief calling Roe v. Wade an unwarranted extension of constitutional doctrine. That was also the view then of mainstream liberal scholars like Archibald Cox, John Ely and Paul Freund." This nation is deeply divided on the issue of abortion. Scholars, lawyers, and judges are deeply divided on the validity of Roe v. Wade. It is simply nonsense to argue that Kuhl is outside the mainstream because she worked on a brief that advanced the Reagan administration's position on that issue. The relevant question about Kuhl is whether her record as a Superior Court judge demonstrates that she posseses the judicial virtues. Given her background, we can be confident that she has the virtue of judicial intelligence and that she is learned in the law. But does she have good practical judgments or judicial wisdom? Does she have a judicial temperment? Most importantly, does she decide the cases that come before her on the basis of the law or does she allow ideology and personal preference to guide her decision making? I don't know enough to answer these questions, but I do know they are right questions. Saturday, April 26, 2003
Just My Luck, Part Three One of the nifty side benefits of doing this blog is the exposure to ideas in areas where I do very little work--for example, torts and criminal law. So I was doubly pleased with the opportunity to read and think about the late David Lewis's famous essay, "The Punishment that Leaves Something to Chance," for the Roundtable on Moral Luck at USD this morning. Lewis's essay is a fresh take on an old problem--why attempts are punished less severely than successfully completed crimes. Lewis's proposal is that the punishment of successful crimes is the equivalent of a lottery. All attempts (successful and unsuccessful) are equally blameworthy. For various reasons, we cannot or should not punish everyone who attempts. Instead, we use success as the proxy for a lottery. So both Alice and Ben attempt to impose harm H; they each have a 50% chance of success. Alice does succeed, and Ben fails. Each is equally culpable, but we punish Alice with a punishment P that is deserved for actions with a 100% chance of causing H. Ex ante, both Alice and Ben have an equal (50%) chance of P and that is what the each deserve. Michael Moore quickly demolished Lewis's argument. Among his argument is that Ben isn't really punished at all--an unrealized risk of P is no punishment at all. And if the punishment is supposed to be proportional to the culpability, then Lewis's scheme breaks down in the real world. Take Carla who acts in a way that creates a 90% risk of harm H and Dan who acts in a way that creates a 10% risk of H. Carla is more culpable than D, but both will recieve P if they succeed because both have attempted the same crime--the intional creation of harm H. This discussion got me thinking. Suppose we tweak Lewis's idea in the following way. Let's not have a punishment lottery. Let's have a mercy lottery. Give those who attempt and succeed punishment P--the punishment they deserve. Then let's conduct a mercy lottery, letting failure operate as a winning ticket in the lottery. No one gets more punishment than they deserve, although some get less. Who has a just ground to complaint? Not those who attempt and succeed: they get what they deserve. Not those who attempt and fail: they get a lighter punishment than they deserve and have no just ground for complaint. Not the victimes of crimes: those who perpetrated the offense against them are those who get the punishment they succeed. If society has instrumental reasons to conduct such a lottery, no one has a just complaint. If a mercy lottery is wrong, it must be because undeserved mercy is wrong. Daniel Markel has an interesting draft paper on this topic--but I don't think it is yet available on line. Just My Luck, Part Two I am blogging again from the Roundtable on Moral Luck at USD. The Friday afternoon session was all about libertarianism and compatabilism--that is we talked about free will and determinism. There was a lively discussion of articles by Thomas Kane, Alfred Mele, and Derk Pereboom. One of the most interesting parts of the afternoon was a conversation after we broke with Steve Smith (USD) about the the driving force behind the free-will/determinism debate outside of professional philosophical circles. IMHO, in the popular culture, the free will determnism debate links up with the debate between dualists and materialists. Folk dualist libertarianism is the nonphilosophical version of the view that we are free because we have noumenal selves--or souls if you prefer. Folk dualists have a hard time understanding how we could be free if we are just material stuff--machines. Folk materialist compatabilism is the nonphilosophical view that we are just material stuff and that we are free nonetheless. Many reflective nonphilosophers find the free-will/determinism debate to be irresolvable--an antinomy of reason, if you like. Here is a possible diagnosis of how one might come to such a position. Imagine that you start as a folk dualist libertarian. You think freedom depends on dualism. Then you become convinced that dualism is untenable, but you still believe in freedom of the will--perhaps on the basis of the internal perspective. From the inside, you just know that we are free. Now, you have two inconsistent views. Because libertarianism acquired its meaning for you while you were still a dualist, the compatability account seems to miss the point. So you are stuck. A fancy way of saying you are stuck is to say that there is an irresolvable conflict in the way we think about the world. Today, the Roundtable turns to the law. First up is the relationship between luck and the criminal law--articles by Joel Feinberg, David Lews and Arthur Ripstein are on the table. Friday, April 25, 2003
Just My Luck, Part One I'm attending the roundtable on Moral Luck here at San Diego today. I've always thought that the real point of Williams's article was directed at Kant and contemporary Kantians. In particular, Williams aims at the idea that only a good will counts for purposes of moral evaluation. As I see Williams's argument, his aim is to undermine this idea by showing the relevance of luck to moral evaluation. Williams's most famous example from Williams's article is Gaughin. Williams argued that Gaughin's choice to leave his family might in some sense have been redeemed by the fact that it turned out that he was a great painter--a matter of luck. Lot's of very interesting comments, but one that sticks was an early comment by Michael Moore--who observed that many of the examples in the moral luck debate stretch the ordinary concepts of luck and control out of recognition. One can say that it is a matter of luck whether a giant goose flies between the gun and the victim just at the right time to prevent a murder--but our ordinary usage of luck would not encompass the case where the goose never arrives. That would be an ordinary case of a result--the killing--within the control of the actor. I was especially pleased to hear Bob Adams (from whom I had a course in Leibniz when he was at UCLA) discuss his famous piece on Involuntary Sin Richard Arneson kept the proceedings lively by offering a consequentialist account of whatever topic was on the table. Heidi Hurd, Thomas Hurka, and David Brink all had many interesting things to say. I've got to finish the readings for the early evening session. Just my luck. Moral Luck at the University of San Diego The University of San Diego’s Institute for Law and Philosophy is hosting a Roundtable on Moral Luck today and tomorrow. The Roundtable plays off the debate that started with Bernard Williams's famous essay, Moral Luck, which sparked a slew of responses and developments. The list of participants includes:
New on SSRN for Friday, Part One There is an unusually large number of new papers on SSRN. I’ve divided them into three batches. Here is the first:
New on SSRN for Friday, Part Two Here is the second batch:
New on SSRN for Friday, Part Three And here is the third batch of papers:
Amitai Aviram (George Mason) uploads Cyclical Market Power. Vasan Kesavan posts When Did the Articles of Confederation Cease to Be Law?, forthcoming in the Notre Dame Law Review. Jenia Iontcheva (Chicago) provides Jury Sentencing as Democratic Practice, forthcoming in the Virginia Law Review. Here is a taste:
Thursday, April 24, 2003
Downward Spirals Department Today's New York Times has an editorial opposing the confirmation of Judge Carolyn Kuhl to the Ninth Circuit. In the current political climate, charges of politicization usually are made by Republicans against Democrats (switching roles from the Clinton years), but the NYT editorial argues that giving Kuhl a hearing constitutes an escalatory move by Republicans:
Post Script: And speaking of downward spirals, check out my colleague Rick Hasen's post on recent proposals for President Bush to do an end run around fillibusters and blueslipping by making use the recess appointments clause. And Brett Marston on the history of recess appointments. And Howard Bashman on the constitutionality of recess appointments with more here. New: I have added a post to Legal Theory Annex that gives links to all of my posts on the downward spiral of politicization in one handy dandy spot. Jacob Levy on Libertarians and Contemporary Politicsa Jacob Levy has a nice post on the relationship of Libertarians to the Republican Party--responding to this post by Eugene Volokh. If you have arrived here from the link in Jacob Levy's post that refers to my post on religion and politics, follow this link. Also, you may be interested in Randy Barnett's National Review piece: Keeping Libertarians Inside the Tent. Ken Simons on Modal Realism & Legal Theory On April 14, I posted on Modal Realism & Legal Theory, playing off a paper by Allan Hazlett (Brown, Philosophy)entitled On the indifference objection to the indexical theory. Ken Simons (Boston University) offers these thoughts on my post:
I agree with you that counterfactual questions are quite important in law (and in moral reasoning), and are often quite legitimate. But I also think that a counterfactual perspective is sometimes highly problematic. A taxonomy of contexts in which such perspectives are employed would be helpful in isolating which contexts are especially problematic. Here is an initial effort to develop a taxonomy:
2. Compensatory damages. Here, the prevalent view is that this remedy puts the victim in a position equivalent to not having suffered the wrong at all. This equivalence can be cashed out in terms of the victim’s subjective indifference, or perhaps in terms of objective value; either way, a counterfactual judgment is necessary. 3. Thought experiments to test the scope and content of a normative argument, by varying facts or factual presuppositions. The Socratic technique is usually employed this way. 4. Baselines. Insofar as the threat/offer distinction is relevant (to unconstitutional conditions analysis, or extortion, or duress, etc.), one common strategy is to ask whether the actor is proposing to make the victim worse off than she (a) was, or (b) would have been in the future, or (c) was entitled to be. 5. Risk and ex ante analysis. Insofar as the legal system imposes liability or sanctions for negligence, recklessness, attempts, or any other form of conduct that creates risk but does not cause actual harm, a judgment is required as to what could have happened (but did not). 6. Criteria for specific concepts, such as "intention" or "purpose." Thus, on one view, "purposeful" discrimination is action taken "because of" (and not "in spite of") its expected negative effect on a protected group (women, a racial minority). Counterfactually, if that effect on that group was not expected, then the actor would not have taken the action. (This is also one way to articulate the doctrine of double effect, which distinguishes purpose from knowledge, and which considers purposeful causation of a harmful means or end unjustifiable, or less justifiable than the knowing causation of a harmful side-effect.)
Thursday Workshops The year is winding down, but there are still workshops. Here is the roundup:
At Kadish, Josh Cohen presents Minimalism About Human Rights: The Most We Can Hope For? Here is a taste of Josh's paper:
Wednesday, April 23, 2003
APA Central Division The American Philosophical Association's Central Dvisions meets today through Saturday. As usual, there are a varietyof papers of interest to legal theorists. Here is a sampling:
Review of Sunstein's Risk and Reason Kristin Shrader-Frechette (Notre Dame, Philosophy) reviews Cass Sunstein's Risk and Reason on Notre Dame Philosophical Reviews. Here is a taste:
New on SSRN Here is the roundup of the latest batch of legal theory papers:
Tuesday, April 22, 2003
Religion, Ideology, and Judicial Selection
An Ideal of Public Reason For many years, there has been an interdisciplinary debate (both in and out of the academy, engaging political scientists, theologians, philosophers, and legal theorists) on the role of religion in public political life. This debate can be framed in a variety of ways. One famous framing device is the metaphor of the public square, and the question is whether religious discourse should enter the public square. Although this image can help to illustrate an argument for the inclusion of religion, it does not illuminate the underlying theoretical issues. A better way of framing the question is in terms of an ideal public reason. Here is the way I put a few years ago:
--An inclusionary view. On might think that religious reasons may be included in public political debate, so long as public reasons are also provided. Thus, a religious citizen could a religious reason so long as she gave the public reason which it supports. --An laissez faire view. On might think that all sorts of reasons are consistent with the virtues of good citizenship, including religious reasons. From Public Political Debate to Judging What about judges? What reasons may they rely upon? Of course, this question is bound up in one's theory of judging. On some theories of judging, the only good reasons are legal reasons--and hence a virtuous judge should never rely upon religious reasons. Here is a highly stylized version of the options:
--Neorealists have an instrumentalist conception of judging--for them extralegal reasons may be brought to bear directly in the decision of particular cases. Neorealists, then, need an ideal of judicial reason--one that sorts the possible arguments of policy, fairness, and virtue into two categories: (1) appropriate for as instrumental reasons for judicial decision making, and (2) inappropriate for that purpose. As a result, neorealists must decide whether religious reasons belong in the former or the latter category. May a judge properly bring her religious reasons to bear in making a decision? If so, can she include them in the opinion she writes?
--Presidents and Senators can consider the judicial philosophies of individual judges, even though those philosophies are grounded by the religious beliefs of the candidates. Thus, if a candidate believed that judges should decide according to law and should not consciously decide cases on the basis of her own moral and political beliefs, the President could count that tenet of judicial philosophy as a plus factor--even if the candidate herself believed this because it was supported by the teachings of her religion. Similarly, if a candidate believed that judges should decide cases directly on the basis of religious teachings (e.g. on the basis of Islamic religious law or on the basis of the Christian bilbe or on the basis of the Talmud), then that could be considered a disqualifying tenet of judicial philosophy--even though it was religious in nature. A Hard Case But neorealists have a problem. They believe that judges can and should decide on the basis of instrumentalist nonlegal reasons. Some neorealists believe that formalism is impossible, and hence that judges must decide on the basis of instrumental nonlegal reasons. So for neorealists, political ideology and religious belief inherently come into the picture. (I'm simplifying quite a bit here; perhaps I can clarify this later.) So, if a neorealist Senator is asked to vote on a candidate whose religious beliefs might lead to decisions which the Senator would not like, then the Senator is naturally lead to oppose the candidate on the basis of the candidate's religious beliefs. Back to Volokh Eugene's move is to argue that ideology can be distinguished from religion. He illustrates the move with a nonjudicial example--a hypothetical Quaker candidate for Secretary of Defense:
A Hypothetical: The Land of Libs and Cons I think it best not to use contemporary examples--too many hot buttons can be pushed if a hypothetical is framed using the rigid designators for contemporary political parties and religious denominations. So I am making up religions and political parties and giving them antique and fanciful names. Suppose we have a society with the following three religions:
--Mithraism. Mithraist theology makes Mithraism directly relevant to the whole of human life, including politics and judging. Mithaists are strict retributivists. They believe that the death penalty is morally required and that judges have a moral obligation to support the death penalty. --Jovism. Jovists theology is like Mithraism in that it is comprehensive, but Jovists believe that Jove has commanded that no human being should intentionally take another human life except in self-defense. Jovists believe that the death penalty is morally impermissible, and that no Jovist may impose the death penalty as a judge. Let's imagine our society is divided equally between the three religious groups. Suppose that in our hypothetical society, there are two political parties, call them the Libs and the Cons. Libs oppose the death penalty. Cons support it. The two parties split the electorate almost equally. Jovists are the base of the Lib party. Mithraists are the base of the Con party. Suppose the President is a Lib but that the Senatre includes 41 Cons. Suppose that in our hypothetical society, the death penalty is a do or die hot button issue. What might happen? Here are some scenarios:
Scenario #2: Suppose that after a year or two of Scenario #1, the President begins to use the recess appointment power to nominate only Jovists and extreme anti-death penalty Odinists to the judiciary. He keeps on doing this, and it becomes a divisive issue in the next Presidential election, with voting polarized along religious lines. Scenario #3: The President nominates mostly moderate Odinists and a small number of Jovists and outspoken anti-death penalty Odinists. The Con Senators allow confirmation of most nominees, but fillibuster most of the Jovists. Back to the Actual World We are not quite in the tragic situation that faces the Libs and the Cons. In contemporary America, the connection between religion, politics, and judging is much looser than in my hypothetical world. But Schurmer's attack on Holmes suggests a scenario that is uncomfortable to conservative Catholics. If neorealist Senators believe that almost all conservative Catholics are likely to be a threat to abortion rights, then they might fillibuster all Catholic nominees that had not proclaimed that moderation on abortion. But this move would be terribly devisive. It would enrage an important segment of the Republican base and provide yet more fuel to the already raging fire that has politicized the judicial selection process. Eugene Volokh's argument against Brendan Miniter included an important assumption: "But if it is proper for them to consider the candidate's ideology, then it must be proper regardless of whether the candidate's ideology flows from his religion." But from the point of view of those with comprehensive religious beliefs, Eugene's point translates as: "If it is proper for Senators and Presidents to consider ideology, it is proper for them to inquire into the candidate's religious beliefs." And that would be a deeply controversial practice. Where Do I Stand? Good question. I know where I stand as a mater of ideal theory. I believe that we should select judges on the basis of their possession of the judicial virtues--intelligence, practical wisdom, integrity, and justice (the disposition to decide according to law rather than on the basis of personal beliefs, whether they be secular or religious). But what should we do once neorealism has corrupted many judges and the judicial selection process has been politicized. Should I join the fray on behalf of my ideology? This is an enormously difficulty question, but my instinct is to answer in the negative. And in particular, I think it is very important that Presidents and Senators try first to discover whether judicial candidates will allow their ideology to influence their decisions. Only if there is an affirmative answer to this threshold question should the inquiry go further into the candidates political beliefs. And the inquiry should stop there. Candidates should not be queried about their religion, and opposition to a candidate should not be framed in religious terms. Even if Eugene Volokh's diagnosis of the Hughes case is incomplete as a matter of theory, it is sound as the basis for action. Bringing religion into the judicial selection wars will only accelerate the downward spiral of politicization. New on SSRN Here is the round up of the latest:
We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking. Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched. Sharona Hoffman and Andrew Morriss (Case Western) offer Birth After Death: Perpetuities & The New Reproductive Technologies, forthcoming in the Georgia Law Review. Tuesday Workshop At the University of Chicago's Olin Series, Henry Hansmann (Yale) presents Legal Entities, Asset Partitioning, and the Evolution of Organizations. Monday, April 21, 2003
Equity and Efficiency I keep an eye on A Taxing Blog because of their excellent coverage of the distributive justice issues that are that heart of some of the most important debates in tax policy. Here is an example. For some reason, legal theory types in law schools who teach in other areas (not to mention those who work out of philosophy or political science) tend to forget that tax policy is where the action is, where distributive justice is concerned. Breaking the Downward Spiral Rick Hasen provides a link a very thoughtful article by Jason Mazzone on Findlaw:
Monday Workshops Here is the roundup:
Sunday, April 20, 2003
Rational Discourse and Internet Governance Earlier this year, Michael Froomkin posted Habermas@Discourse.Net: Toward a Critical Theory of Cyberspace on SSRN. It is also available online from Westlaw and at 116 Harvard Law Review 749 (2003). Here are some thoughts about Froomkin's magnificent accomplishment:
Habermas Jurgen Habermas is without doubt one of the most important thinkers in the world today. With John Rawls demise earlier this year, it is indisputable that Habermas is the greatest living social theorist and political philosopher. Habermas's theoretical edifice is complex and Habermas's prose is often difficult. In this post, I want to sketch just two or three important ideas that will enable me to comment meaningfully on Froomkin's article. Let's start with the idea of legitimacy.
--Legitimacy is a characteristic of processes. We say that governments, regimes, and procedures are legitimate. The decisions of government and the outcomes of procedures are legitimate in a derivative sense. Froomkin is concerned with the legitimacy of Internet governance institutions such as the IETF and ICANN, and derivatively with the legitimacy of the decisions those institutions make. --Theories of legitimate can be classified in many ways, but the following groupings are helpful as a starting point:
++Reliability theories maintain that a government or procedure is legitimate if and only if it is structured so as reliably produce just or good decisions or outcomes. ++Process theories maintain that a government or procedure is legitimate if and only if the processes it employs to make decisions have certain legitimating features, e.g. they are democratic or participative. The Discourse Principle Habermas uses the term "valid" to get at the conditions for legitimacy. He defnes the Discourse Principle as follows: "Just those action norms are valid to which all possibly affected persons could agree in rational discourse." And what is a rational discourse? "[R]ational discourse" should include anyattempt to reach an understanding over problematic validity claims insofar as this takes place under conditions of communication that enable the free processing of topics and contributions, information and reasons . . . The expresion also refers indirectly to bargaining processes insofar as these are regulated by discursively bounded procedures." In particular, a rational discourse must satisfy the following conditions:
Is Froomkin Right? Is the IETF legitimate? Are IETF decisions legitimate because IETF processes are structured by the conditions of rational discourse? In this section, I want to present some worries about Froomkin's conclusion. None of my concerns will come as surprises to Froomkin--all are anticipated in one way or another. Here they are.
--Consensus Achieved Through Subtle Exclusion. Froomkin knows that the IETF is hardly the world's most inclusive group--it is overwhelmingly male and conducts its business in English. What about the latter point? Froomkin attempts to defend the dominance of English as follows:
--Off the Agenda: Witetapping. Yet another feature of the IETF that is problematic concerns its decisions to place certain issues off the agenda. This occurred with respect to the question whether the IETF should facilitate wiretapping by promulgating standards that would make the Internet wiretap friendly. In the end, the IETF concluded that it "was the wrong forum" for such activity--RFC 2804. But was this decision truly the product of rational discourse--the unforced force of the better argument, or did it instead reflect the interests and ideologies of IETF participants, with the viewpoints from outside the engineering community getting scant consideration? I plowed through many dozens of postings to the RAVEN discussion list, and my impression (but this is just an impression) is that the discussion was remarkably one sided, with very little participation from those outside the engineering community. (Michael, please correct me if I am wrong about this.) Did "all voices in any way relevant get a hearing" before the IETF decided not to make the Internet wiretap friendly? Were law enforcement officials, criminologists, and law professors active participants in the RAVEN list? My preliminary research suggests that the answers to these questions are "no" and "no." Not that this was necessarily a bad thing . . . ICANN If the IETF is the hero of Froomkin's story, ICANN (the Internet Corporation for Assigned Names and Numbers) is the villain. ICANN controls the allocation of two important resources--the Domain Name System and Internet Protocol addresses (or numbers). Even in the post-dotcom era, it is not hard to see the economic value of domain names. Verisign makes a lot of money as the registry (wholesaler) and a registrar (retailer) of domain names. Names like ebay.com and amazon.com obviously have value. Cybersquatting does economic injury to the owners of valuable trademarks. ICANN acts as a sort of private transnational regulatory body for the domain name system, and its activities directly affect the economic interests of stakeholders--registries, registrars, trademark owners, and others. Froomkin holds ICANN up to the standard of rational discourse and finds it wanting. Here is a partial list of the problems:
--ICANN holds secret board meetings. --Policies were released for public comment only a day or two before board actions. --ICANN staff made unilateral decions. --ICANN staff denied a board member, Karl Auerbach, access to information.
--And What About ICANN? So what was ICANN's problem? Fundamentally, ICANN is doing something different than the IETF. The IETF creates standards. If it does its job well, everybody wins. If it doesn't do its job and no standards are created, everybody loses. In the IETF's sphere of authority, there are powerful incentives for cooperation. Moreover, the network engineers who participate in IETF processes share a common set of assumptions and values. They share the very young but nonetheless powerful norms of the network engineering community--the end to end principle is an example. The nature of ICANN's task is quite different. ICANN is a resource allocation agency. ICANN doesn't set standards. ICANN distributes goodies--access to the root of the Domain Name System and IP Addresses. The stakeholders in ICANN's processes are mostly economic actors whose motives are structured by the market. The registrars, registries, trademark owners, and other entrenched stakeholders are mostly profit maximizing firms. In Habermasian terms, their behavior is governed by systems impeartives. Or to put the point more crudely, ICANN stakeholders want to make a buck. --The Trouble with Bottom-Up, Consensus Driven Decision Making. So what happens when you take a bunch of profit-maximizing firms and ask them to participate in a rational discourse? The answer is obvious. One of the basic assumptions of rational discourse is simply absent. Stakeholders who participate in the ICANN process are not motivated by the search for truth. The representatives of ATT and Verisign cannot be moved by the unforced force of the better argument. They have a fiduciary duty to their employers. They are moved by the systems imperative of profit maximization. The representatives of entrenched stakeholders who participate in the ICANN process will object when consensus is sought on a proposal that undermines their important economic interests. For example, the interests of some entrenched stakeholders in the ICANN process would be injured by opening the root to the creation of new generic Top Level Domains (gTLDs)--new dotcoms. So don't expect a "rational consensus" in favor of serious root expansion to emerge from ICANN's bottom-up, consensus driven process. This does not mean that the stakeholders cannot bargain from enlightened self interest. Participants in the ICANN process know that sometimes you win and sometimes you lose. They understand that sometimes you must give a little to get a little. They get, "You scratch my back and I'll scratch yours." They realize that in some cases they must act in the public interest in order to preserve ICANN as an institution, for fear that something more inimicable to their interests might replace ICANN. And so, sometimes they will engage in what looks like "rational discourse." And when their own interests are not on the table, they may even engage in what truly is "rational discourse." But these qualifications do not alter the fundamental fact: ICANN's fundamental task cannot be accomplished through rational discourse. That is pie in the sky. --But What is the Alternative? And Habermas is very helpful at precisely this point. This is where we need to listen very carefully to Habermas--because he got it exactly right. Habermas's theory doesn't demand that every decision be made through a process built on the model of rational discourse. Remember what Habermas said: "Discourses do not govern. They generate a communicative power that cannot take the place of administration but can only influence it. This influence is limited to the procurement and withdrawal of legitimation." Oh, and by the way, more democarcy or more openness won't cure this problem. ICANN will never be able to conduct its day to day decision making process in the public interest. The public interest in names and numbers is simply too diffuse. Individual Internet users and domain name registrants face an intractable collective action problem when it comes to participation in ICANN. It isn't worth our while to participate--our individual stake is only a few pennies or a few dollars. But ICANN doesn't need to make decisions through a process of rational discourse. Because ICANN is in the resource allocation business, it can serve the public interest simply by selling the resources it controls. Once names and numbers are tradeable, the market can do the rest--this is the essential insight of the Nobel Prize winning economist Ronald Coase. --But Froomkin Is Essentially Right I've just spent some time quibbling with Froomkin, but we should not lose sight of the fact that Froomkin is essentially right. I don't agree with Froomkin that ICANN's processes are flawed because they do not themselves model a rational discourse. Because of ICANN's tasks, systems imperatives will drive its decisionmaking. But Froomkin is right that many of ICANN's decisions cannot be legitimated by a rational discourse outside of ICANN. There is a subtle and important irony here. ICANN's failures are caused by ICANN's attempts to emulate the IETF. The rational discourse model does not work for the allocation of scarce resources when the participants in the discourse are profit-maximizing firms. That dog won't hunt. ICANN took on the trappings of the IETF--bottom up, consensus driven decisionmaking. These trappings give profit-maximizing firms the opportunities to engage in strategic action. They can block consensus and clog the channels of discourse. The real hope for ICANN is not more process. Let me repeat that. The real hope for ICANN is not more process. The real hope for ICANN is less process. The real hope for ICANN is more markets. And the more that ICANN relies on bottom up, consensus driven decision making, the less likely it is that ICANN will move toward market driven solutions to the resource allocation problems it faces. The Latest Theory Is That Theory Doesn't Matter That is the title of a story from the New York Times yesterday. Here is the gist:
New on SSRN Robert Post (Berkeley) uploads Law and Cultural Conflict. Here is the abstract:
The first dimension concerns the sociological relationship between law and culture. The simplest model of this relationship, which the article calls the "Devlin model," assumes that law is the expression of a coherent antecedent culture that is the ultimate source of society's identity and authority. This view of law underlies many contemporary formulations of constitutional and common law, as well as various claims to national self-determination and multiculturalism. The Devlin model is radically oversimplified, however, because it undertheorizes both law and culture. It fails to recognize the many ways in which law can not only enforce an antecedent culture, but also constitute that culture, as well as displace it in the name of instrumental rationality. The Devlin model also fails to recognize that a society's culture is typically neither stable, coherent nor singular. The article offers a typology of the various relationships that law can assume with cultural contestation and heterogeneity. The second dimension concerns the form of legal intervention. Different forms of interventions place the law in different relationships with cultural conflict. Legislation differs from adjudication; criminal law differs from administration regulation. The article uses the case of Romer v. Evans to explore how the fact of cultural conflict can affect the creation of judicially created constitutional rights. The dialectic between cultural conflict and judicially-enforced constitutional rights should primarily be understood as a matter addressed by the substantive jurisprudence of constitutional law. The third dimension concerns the nature of legal rights. Some rights, like those protected by the First Amendment, promote cultural diversity in ways that other rights, like those protected by the Equal Protection Clause do not. The first kind of rights are hospitable to cultural conflict; the second are not. The distinction turns on the difference between rights that understand cultural values as instantiated by particular forms of social relationships, and rights that understand the prevention of state regulation as a necessary but not sufficient condition for the realization of cultural values. The article parses the various factors that are relevant for determining which kinds of rights the law ought to implement. Saturday, April 19, 2003
Political Philosophy versus Political Theory and a Comment about the Legal Academy
Who Trains Legal Academics? Political theorists are mostly trained in political science (or politics or government) departments; political philosophers are are almost always trained in philosophy departments. Where are legal theorists trained? Just two decades ago, the answer was almost always "in law schools," but this has begun to change substantially over the course of the past two decades. Increasingly, law schools are hiring entry level candidates who have a JD plus a PhD in one of several disciplines, such as economics, political science, history, philosophy, or sociology. But the majority of new law professors do not have a PhD. At some elite institutions, most new entry-level hires are JD-PhDs. What Do Legal Academics Know? It used to be the case that legal academics knew the law. They knew a lot about cases, statutes, constitutions, regulations, and a secondary literature about those things. A truly accomplished legal academic might read dozens of cases every week, hundreds or thousands of cases in a year. Nowadays, legal academics tend to know more about other disciplines and less about the content of the law. Indeed, many law professors only read the cases that appear in the casebooks from which they teach, plus an occaisional blockbuster case in thier field. Of course, some law professors still write treatises (I've written two myself), and, this dying breed must, of necessity, continue to slog through cases by the hundreds. But increasingly the treatise writers are older members of prestigious faculties or younger members of faculties at second and third tier instituttions. There are exceptions to the delegalization of the legal academy. Some fields continue to be more caselaw focused. Constitutional law is highly theoretical and interdisciplinary, but Supreme Court cases still get read. Tax seems involve a closer relationship between the academic and practitioner communities than some other fields. But increasingly, it is the case, the legal academics don't know much law. What Constitutes Good Legal Scholarship? What does it mean to write a really great law review article? For decades, the paradigm was clear. Law professors aspired to write Brandeis and Warren's The Right to Privacy or Charles Reich's The New Property. The recipe for a truly great law review article began with a nice bunch of cases, added a dash of policy and a smidgen of theory, mixed well. The end product was a more scholarly version of a brief. Ultimate success was measured by the article's ability to move the courts in the right direction. At the end of this period, there was a holy grail. Law professors everywhere aspired to write the law review article that would convince the Supreme Court to declare that there is a constitutional right to welfare or a guaranteed annual income. The last gasp of the old paradigm was Catherine MacKinnon's work that was instrumental in establishing sexual harassment as the basis for a sex discrimination claim. But nowadays, the paradigm is murky. Truly great law review articles have titles like The Tragedy of the Anticommons. They are mostly addressed to other law professors, and if they seek real world impact, their intended audience is just as likely to be a legislature or even the constitution makers in a new democracy as it is to be a domestic court. Given the interdisciplinary heterodoxy that reigns in the legal academy, there simply isn't agreement on standards for excellence. Behind closed doors, faculty members from one theoretical orientations are likely to tell you that all the work done by scholars with a different orienation is dreck or worse. Nonetheless, there is a consensus of sort. A truly great piece of legal scholarship is one that changes the way we think about the law. Where Do We Go From Here? Heck if I know. But here are some gut feelings. First, heterdoxy is a good thing, not a bad thing. Legal theory draws on a variety of other disciplines, because the law deals with the whole of human life. Economics, philosophy, political science, sociology, and history--are all relevant. Second, a period of ferment and experimentation is to be expected. There was a time in the 1990s when the legal academy went through what might be called its "Theory of the Month Club" phase. CLS, feminist jurisprudence, critical race theory, Habermas, Gadamer, Foucault, Derrida--the ideas raced through the legal academy at breakneck speed, flared with a brilliant light and faded just as quickly. Why should we expect that a transition from a legal academy dominated by narrow doctrinalism to a legal academy that embraces interdisciplinarity would be easy? On the contrary, we should have expected what we got. A messy and sometimes embarassing series of lurches, as individuals and institutions began, sometimes enthusiastically, sometimes grudgingly to retool, rethink, rework, and reinvent what it means to be a legal scholar. And Back to Political Philosophy versus Political Theory Political philosophers and political theorists--although they dwell in different departments and attend different conferences--have much more in common that do the faculty members of many American law schools. Most political theorists and political philosophers can have an intelligent conversation about an important historical figure such as Hobbes or modern superstar such as Rawls. They may talk past one another, but there is a good chance that they will issues about which they can disagree (or maybe even agree). In the legal academy, even this much cannot be taken for granted. What can a economic PhD corporations scholar say to a philosophy PhD torts scholar? Both subfield and training are different, and although both may attend the same annual meeting of the AALS, they won't hang with the same crowds. (Well, yes, they both can talk about the cases studied in the first year of law school.) Could things be different? Tom Runnacles's contribution to the commentary on Jacob Levy's post focused on the role that that the Philosophy, Politics, and Economics undergraduate degree at Oxford has had in providing some common ground for political theory and political philosophy in the United Kingdom. Imagine what the legal academy would be like if legal academics all had something similar before attending law school. A Selective Guide to the Posts Levy's original post sparked several comments. Here are just a few:
Russell Arben Fox's Comment. Matthew Yglesias's comment. Levy's Responses to Fox and Yglesias. Chris Bertram comments. Nate Oman on Legal Theory and Legal Philosophy. Stuart Buck chimes in. Tom Runnacles adds a very interesting comment on the influence of the Philosophy, Politics and Economics (PPE) degree at Oxford. Friday, April 18, 2003
Raz at Texas Joseph Raz continues his visit to the University of Texas Law and Philosophy Program as an Anderson Fellow in Residence. Gardner at Penn At the University of Pennsylvania’s law and philosophy series, John Gardner (Oxford) is on the schedule for today. His paper is Backwards and Forwards with Tort Law. Here are some reflections on his paper:
Coleman's Two Arguments As I say, the heart of Gardner's piece is a critique of two arguments made by Jules Coleman. Here is how Gardner lays out Coleman's arguments:
[Second objection:] How then does the economist account for the fact that in the typical tort suit the victim sues the injurer and not the alleged cheapest cost avoider? How does one square the forwardlooking goal of tort law (on the economic model) with the backwardlooking structure of tort law? The economist cannot appeal to the obvious answer that the victim believes the injurer harmed him wrongfully and in doing so incurred a duty to make good the victim’s losses. In the economist’s account, the victim sues the injurer because the cost of searching for those in the best position to reduce the costs of future accidents is too high.
Step Two: Find some conceptual assumption that is made in the arguments advanced in favor of a normative position. Step Three: Escalate the conceptual issue to an abstract level--where philosophical techniques can be brought to bear. Step Four: Demolish the conceptual assumption at the abstract level. Step Five: Claim that the underlying normative position is therefore untenable. New on SSRN Here is the roundup:
Derek Jinks (St. Louis University) uploads September 11 and the Laws of War, forthcoming in the Yale Journal of International Law. Oona Hathaway (Yale) posts Testing Conventional Wisdom, forthcoming in the European Journal of International Law. Thursday, April 17, 2003
A Tournament for Judges. Mad? Brilliant? Clever?
Assumptions So let’s begin with some assumptions made by Choi and Gulati:
--Only judges on the United States Courts of Appeal are eligible to become Supreme Court Justices. Choi and Gulati: “The norm today appears to be that a candidate for the Court has to first do a stint on a circuit court. We take this norm as the starting point for the tournament of judges.” This assumption is obviously problematic, but let’s give it to Choi and Gulati to get the discussion going.
--Judicial independence. Not an easy thing to measure, but Choi and Gulati have a proposal:
The Case for Tournaments Gulati and Choi claim the following arguments in favor of the tournament of judges:
--Performance Incentives. A tournament of judges will give Court of Appeals judges incentives to work harder and write better opinions, both to win the tournament and to gain prestiges vis a vis their colleagues. --Better Supreme Court Justices. A tournament will result in pressures on Presidents to select the best Court of Appeals judges, and as a result, the quality of the Supreme Court will improve.
--Frequency of Citation. The opportunities for gaming this measure are obvious. Academics will now have an incentive to cite their favorites to influence tournament results. Likewise with both lower court and Supreme Court justices. A set of second-order tactics will be likely to emerge. The composition of law school faculties can be influenced by state legislatures and by the wealthy alumni of private universities. The lower federal court benches are selected by the President and the Senate. Moreover, judges themselves can change their opinion writing so as to maximize the opportunities for both citing other judges (allies in the tournament) and for being cited. Opinions will become longer and long string-cites will become the rule. Basic and uncontroversial issues will be discussed in depth. When faced with a choice between writing an opinion on an issue where there is no law—because the issue arises infrequently—and an issue on which there is lots of law—because the issue comes up all the time—the rational tournament participant will avoid the former and seek the latter. And I am just warming up, there will be endless opportunities for gaming the citation count measure. --Judicial Independence. Choi and Gulati propose that we measure independence by voting records. Judges would score points for voting against a judge appointed by a President of the same party as appointed that judge. There are several ways to game this measure. Most obviously, dissent when a same party judge is in the majority and the decision would otherwise be unanimous—Oh, and by the way, write a long citable dissent that rehearses all of the basic law surrounding the case and cites all your allies in the tournament. Of course, there will be cases in which you cannot decide contrary to party affiliation without changing the outcome. But if you are a tournament leader and the case is not on a hot-button issue about which you care deeply, it may well be in your interest to score some independence points by deciding the case in a way you believe is wrong—writing a long opinion, of course! --Gaming Clerk Selection. Getting really good clerks is going to be very important. If you want to be a tournament leader, you will need to write a lot of very long opinions and dissents. Moreover, you need high quality opinions, because they are more likely to be cited by other judges. So you want the best clerks. Supreme Court Justices can influence who gets the best clerks by informally signalling that some judges are “feeder judges.” Clerks will want those clerkships, because they will lead to prestigious Supreme Court clerkships, which in turn will lead to prestigious academic positions, creating the opportunity to influence both citations and future clerks. The advantage added by the very best clerks is likely to be substantial, and may well be decisive, given that citation frequency is the one measure among the three where an equilibrium ceiling is unlikely to be established by the players. With great clerks and a stable of externs and some high quality politicking, it might be possible for a judge to garner many thousands of citations.
--The Exclusion of Soft Variables. One of the most important judicial virtues is judicial wisdom or what the ancient Greeks called phronesis. No points are awarded to judges who have common sense, the ability to size up a situation and penetrate to the issues that are truly important. Indeed, the judges who possess this virtue are likely to be rather poor performers in the tournament of judges. They are likely to perceive that scoring points at the expense of doing justice is a rather poor excuse for judging. They are likely to lag behind their more canny and competitive colleagues. --Decreased Transparency. Gulati and Choi claim transparency as an advantage for the tournament of judges, but in all likelihood the opposite is likely to be the result of their proposal. The tournament is likely to create an illusion of objectivity. Behind the scenes, however, there would be manipulation of opinion counts, citation counts, and independent decision counts. This will especially be true if one party were to control the Presidency, the Senate, the Supreme Court, and a majority of Court of Appeals slots at the beginning of the tournament. That party would have enormous strategic advantages in gaming the tournament, but the political nature of the selection process would effectively be masked by the apparently neutral and objective basis that the tournament results would provide for the selection of Supreme Court Justices. --A Crisis. Indeed, the end result of Choi and Gulati’s proposal would be so awful that one cannot imagine the story ending except in some kind of crisis. You may not like the current Supreme Court, but imagine a court populated by judges who had won Choi and Gulati’s tournament. These judges would be without the virtues of integrity, wisdom, or justice. They would have been selected for the ability to manipulate the tournament results. In order to do this, the winning judges would be those who are willing to elevate self interest over the interests of the public and the parties who appear before them. And these clever but vicious judges would be entrusted with the ultimate constitutional authority. More from John Eden on Rawls, Cohen, and the Difference Principle John Eden has more to say about the ongoing debate sparked by Gerald Cohen's critique of John Rawls's claim that the two principles should be limited to the basic structure. Here is John's Post (in the new Legal Theory Annex). And here is a taste:
Workshop Today Bruce Kobayashi does an internal workshop at George Mason titled Copyrighting Lawsuits. New on SSRN Lot's of interesting papers today:
Stephen Choi (U.C. Berkeley) and Gaurang Gulati (Georgetown) offer A Tournament of Judges?. I will definitely have something to say about this! But in the meantime, check out the abstract:
Wednesday, April 16, 2003
Levy on Political Philosophy and Political Theory Jacob Levy has written the best blog post that I have read so far in 2003. Just read it. New Papers from YJoLT Here is a selection from the new papers up on the Yale Journal of Law and Technology:
Tal Z. Zarsky's (Columbia, JSD Candidate) piece is entitled Mine Your Own Business!”: Making the Case for the Implications of the Data Mining of Personal Information in the Forum of Public Opinion. Public Choice and Libertarianism Apologies to Julian Sanchez & Henry Farrell: The original version of this posts mixed up their respective quotes! Here are two very interesting posts on Public Choice and Libertarianism:
Politicization of Judicial Selection: Moderation versus Neoformalism
Two Solutions Here are two possible solutions to the problem:
Neoformalism There is another solution. Judges could be selected on the basis of their possession of the judicial virtues. In particular, we could look for judges who possess the virtue of justice--the disposition to decide in accord with the law rather than on the basis of personal political ideology. If this solution were adopted, it would be likely that during Democratic administrations, judicial appointees would be left to center in political ideology, but dedicated to the rule of law as a matter of legal ideology. contrawise, Republican Presidents would appoint judges whose political commitments were right of center, but who were dedicated to the intergrity and coherence of the law. Of course, political ideology would inevitably influence judging. Sophisticated neoformalists do not believe that a deep commitment to the rule of law is the equivalent of a "cone of silence," insulating the judge's legal deliberations from her political perspective. But the fact is that judges can do a pretty good job of separating law and poltitics--if they that is the target at which they aim. But is neoformalist judging in the feasible choice set? For the sake of argument, assume that I am right about the normative question. This is not the end of the story. There is still the feasibility question. Is neoformalism feasible? Given that we have gone quite a long distance down the road of politicization, is it really possible for politicians (Senators and Presidents) to compromise on neoformalism? I have argued that it is--if the political actors focus their attention on their long term interests. But my argument assumes that political actors can look beyond their own election and act on the basis of their own long-run preferences. If this assumption is false, then moderation may be the best solution in the feasible set. And even moderation may not be feasible if a focus on short-run reelection is combined with asymmetrical perceptions. If Republicans believe that Democrats are escalating with every move and Democrats believe the opposite, then continued escalation seems inevitable. Where does that end? There are really only two possibilities: deadlock and thorough politicization. Deadlock would mean a depopulated judiciary. Thorough politicizatiohn would mean judges who viewed even ordinary lawsuits as an opportunity to hand out political rewards--in the form of judgments, verdicts, and rulings. Either scenario is grim indeed. If moderation is the very best we can do, I am all for it as the second best. But neoformalism is the first best solution. Raz at Texas At the University of Texas's Law and Philosophy series, Joseph Raz will be an Anderson Foundation Fellow in Residence. Another coup for Brian Leiter. Downward Spirals Department Here are two posts of interest re the continuing politicization of the judicial selection process:
--Rick Hasen has a post entitled More on pro-Estrada television campaign and the appropriateness of political fights over judicial nominees. --Update: Rick has another great post: One vote for political solutions over death spirals. New on SSRN Here is today's roundup:
Jenia Iontcheva (Chicago) uploads Jury Sentencing as Democratic Practice, forthcoming in the Virginia Law Review. Here is a taste from the abstract:
Ezra Friedman (Yale, Economics) and Abraham Wickelgren (Federal Trade Commission) offer Bayesian Juries and the Limits to Deterrence. Tuesday, April 15, 2003
Gutmann on Identity Politics Courtesy of PoliticalTheory.Info, here is a link to a chapter from Amy Gutmann's Identity in Democracy. And here is a review by Philip Gold. I found the review trite and ill-informed--making the typical anti-academic moves without substantive arguments to back them up--but here is a nice passage from the book itself:
Downward Spirals Department Just how bad is the politicization of the judicial selection process. Recent events in New Zealand provide some perspective. The amazing Howard Bashman posts this correspondence from New Zealand:
You can read more about it here. This is terrible constitutional behaviour, especially for a western democracy. The U.S. is fortunate, by comparison, that their biggest dispute is over the confirmation of a judge to an intermediate court. Two Ways of Looking at Politicization of Judicial Selection My colleague, Rick Hasen, reports on a Washington Post article, suggesting a new step in what I see as escalating politicization of the judicial selection process. Here is an excerpt from the story:
The ads, which call on Democrats in swing states to abandon delaying tactics against the current president's judicial nominees, could aid Republican challengers in some of 2004's most fiercely contested Senate races. Top officials of the Committee for Justice, which is coordinating the effort, say similar ads they aired last year helped Republican John Cornyn defeat Democrat Ron Kirk in the U.S. Senate race in Texas. Political Scientists and Lawyers Political Scientists and Lawyers see the politicization of judicial selection a bit differently. Rick is trained in both disciplines, whereas my training is in law--with a smidgen of moral and political philosophy. Here is a quote from Rick's latest post, where he reacts to the latest move:
Monday, April 14, 2003
Modal Realism and Legal Theory
Hold on there, Solum! . . . . . . an inner voice cries out, "Have you lost your mind? Do I need to remind you that this is the Legal Theory Blog? Why on earth are we discussing metaphysics? In particular, why on earth are we discussing modal realism--the view that all the possible worlds are real? Surely, legal theorists can safely ignore that! Surely, we legal theorists (and practical folk in general) have no more reason to care about modal realism that we have to care about the number of angels that can dance on the head of a pin." Should We Care About Non-Actual Possible Worlds? Two days ago, Allan Hazlett (Brown, Philosophy) posted a note (very short paper) entitled On the indifference objection to the indexical theory. Let me share two of Hazlett's quotes from other philosophers:
. . . the inner voice screams out. "Answer my question! What does this have to do with legal theory?" What Does This Have To Do With Legal Theory? Should legal theorists care about nonactual possible worlds? Let's reframe the question: "Should legal theorists (and legal pratictioners for that matter) care about hypotheticals?" And "Should we care about counterfactual states of affairs?" Consider the following hypotheticals:
--Or suppose, you are arguing for damages in a contract case and you start to discuss what would have happened if the contract had been fulfilled, but the judge cuts you off and says, "Counselor, you will limit your discussion to events and actions which have occurred in the actual world. No possible worlds talk is allowed in my courtroom!" --Or perhaps you are writing a paper utilizing the analytical machinery of economics or positive political theory, you submit the paper to a journal and get back the following response: "We regret that we find your paper unsuitable for publication. Our focus at the Miskatonic Law Review is exclusively on law in the actual world. Because your paper makes several counterfactual assumptions, we cannot publish it in its present form. If you can revise your paper so as to eliminate all discussion of nonactual possible worlds, we would welcome its resubmission." But in fact, legal theory is all about nonactual worlds. That's the way that theories get traction. And we do care, passionately, about what happens in possible worlds. Possibility is our bread and butter. Talking about nonactual possible worlds is what we do. The life of the mind is lived in nonactual possible worlds. And we haven't paid enought attention to modality. Legal theory tends to be very sloppy in the way that we treat the modal terms possibility and necessity. Possible worlds semantics has one great virtue (putting aside the metaphysical questions about modal realism). Possible worlds semantics gives us a conceptual vocabulary that allows ambiguous and opaque discussions of possibility to made precise and transparent. This is especially true with respect to one of the most neglected issues in legal theory, the question of feasibility. Quite frequently, debates about substantive issues in legal theory turn out in the end to be premised on a deep disagreement about which options should be included in the feasible choice set. Sometimes the first best solution is off the table, and the discussion turns to second best. Sometimes, substantive positions are dismissed as utopian or as lacking political reality. But if a debate is joined and the participants do not see that they have adopted differing criteria for inclusion in the feasible choice set, the inevitable result is misunderstanding and confusion. [D]o I really care about other-worldly goods and evils? Well, yes, I do. John Dunn on Trust and Legitimacy Courtesy of PoliticalTheory.Info, John Dunn has posted a paper entitled Trust and Political Agency. Dunn's paper deals with the question of political legitimacy--to me, one of the most important issues in legal and political theory, but also the issue with respect to which I am least satisfied by the positions currently fashionable. Here is a taste of Dunn's paper:
Update Barnett has posted his essay, Constitutional Legitimacy, which also appears at 103 Col. L. Rev. 111 (2003). Sunday, April 13, 2003
New on SSRN Here is the roundup:
David Lublin (American) and D. Stephen Voss (Kentucky) post The Missing Middle: Why Median–Voter Theory Can't Save Democrats from Singing the Boll-Weevil Blues, forthcoming in The Journal of Politics. Thomas Rudolph (Illionis, Urbana-Champaign) offers Institutional Context and the Assignment of Political Responsibility, forthcoming in The Journal of Politics. David Clark (Suny Binghamton) and William Reed (Rice, Political Science) unveil A Unified Model of War Onset and Outcome, forthcoming in The Journal of Politics. James Gibson (Washington University) and Gregory Caldeira (Ohio State, Political Science) present Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court. Lazarus on Wild Bill Edward Lazarus (author of Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court) has a review of Bruce Allen Murphy's Wild Bill: The LIfe and Legend of William O. Douglas. Wild Bill is provoking very interesting reviews, including one by Richard Posner (subject of this post). Posner thought that Douglas was a bad man and a bad judge. Lazarus agrees (and who could argue otherwise) that Douglas was a bad man, and agrees that he was not the best of judges, but he finds fault with Murphy's failure to come to terms with Douglas's jurisprudential legacy. Here is an excerpt from Lazarus's review:
And what about Douglas' 36 years on the court? True, Douglas was not a great justice. Like Byron White, with whom he served for a decade, Douglas was too restless a spirit to prosper in the cloistered world of the court. He churned out more opinions than any other justice in history. Yet remarkably few are true landmarks or exemplars of the laborious craft of judging. In some fields, however, Douglas was preeminent. He was the first justice ever to speak about a right to work and to imagine a person's job as a form of protected property. At the height of 1950s anti-communism, Douglas used the forum of anti-communist prosecutions to defend the then unpopular view that no man should be punished "not for what they did, but for what they thought." And he played a decisive role in building the right to privacy that now holds center stage in legal debate. In his later years especially, Douglas lost sight of the limits on judicial power. It was as though, sensing his own mortality, Douglas wanted to inscribe in the book of court history his personal views on every issue from the war in Vietnam to the legal rights of trees. In this respect, Douglas embodied both the best and worst of the court: He possessed a genius for understanding the components of human freedom but, from selfishness or arrogance, paid little heed to the proper role of a single, unelected, life-tenured judge in a constitutional democracy. Justice as Fairness, The Two Principles and the Basic Structure, Post 2 in an Ongoing Series
(b) attached to offices and positions open to all under conditions of fair equality of opportunity. Roadmap There has been a minor blogospheric eruption of posts on this issue. For a guide to the various comments from Chris Bertram, Micah Schwartzman, Matthew Yglesias, Russell Arben Fox, Tom Runnacles, Andrew Sabl, and John Eden., you can click here. In Part 1, I made two moves. First, I suggested that from within the framework of justice as fairness the question can be approached by convening a special session of the Original Position:
The Special Session of the Original Position, Part One How would the parties in the original position deliberate with respect to the question whether they should adopt the basic structure version or the comprehensive version of the difference principle? In order to answer this question, we need to think about the way the Original Position (OP) is laid out. Rawls tells us that the parties deliberate behind a veil of ignorance. In the OP, the veil is quite thick, but in TJ, Rawls makes it clear that as various issues are introduced, the representatives in the OP move through a four-stage sequence, in which the veil is progressively lifted. Should the veil be lifted to deal with the issue posed in the special session? In particular, should the representative parties know only that the citizens they represent have the two moral powers (to form, revise, and act on a conception of the good and a conception of justice)? Or should they also be informed about the particular comprehensive and partially comprehensive moral, religious, and philosophical doctrines that the represented parties affirm? It turns out that this is quite a difficult question, and that we will need to do quite a bit of work to answer it. So, let's assume for now that the veil is not partially lifted. We can then revisit this issue, after we have had a chance to see the implications of addressing the issue with the full veil in place. We further assume that the parties in the OP represent citizens with the two moral powers, that the parties have already chosen the two principles, and that the other features of the OP as described by Rawls are in place. The Special Session of the Original Position, Part Two How will the parties in the original position reason? In TJ, Rawls suggests that they will use the maximin principle--which Rawls has borrowed from decision theory. Maximin enjoins a decision maker to choose the alternative that will maximize the value of the minimum outcome. In the OP, outcomes are measured by the primary goods--these include the basic liberties, the social bases of self-respect, and economic advantages such as wealth and income. Of course, the use of the primary goods in the original position is itself controversial--playing a role in the equality of what debates. I shall leave all of those issues aside. (This is a blog, after all.) So, how would the representative parties to the original position apply the maximinin principle to the choice between the basic structure version and the comprehensive version of the difference principle? A branch in the argument. I am now going to consider the implications of a certain way of answering this question. As the argument progresses, it will become apparent that something is deeply wrong with the direction in which I am about to go. But the difficulties will not be fully explored until a subsequent post in this series. Given that this is a blog, I need to beg the indulgence of the reader for this argumentative strategy. So here goes. Suppose the parties reasoned as follows:
Saturday, April 12, 2003
Scalia on Politicization & Neoformalism Justice Scalia's recent speech at the University of Mississippi raises issues about the relationship between theories of constitutional interpretation, politicization of the judiciary, and the judicial selection process. Here is an excerpt:
[Interpreting the constitution as a living document], Scalia said, goes far beyond [the] role [of Supreme Court Justices] as jurists and turns justices into policy makers, which in turn pollutes the selection process. Scalia referenced the embattled Bush nominations to the U.S. Court of Appeals. "People have finally figured out ... that judges aren't interpreting law anymore, they're making policy," Scalia said. "So I don't want a good lawyer, I want someone who agrees with me. "We'll have to have a mini-constitutional convention every time they select a new justice of the Supreme Court." Justice as Fairness, The Two Principles and the Basic Structure, Post 1 in an Ongoing Series
Framing the Issue In this series of posts, I shall hope to convince you that Gerald Cohen's critique is based on a fundamental misunderstanding of justice as fairness, the theory that Rawls developes in A Theory of Justice, hereinafter TJ and Political Liberalism, hereinafter PL. I have already front loaded the blog-abbreviated versions of my arguments in an earlier post. Rather than drawing more fire by repeating my trenchant and underdeveloped comments here, I want instread to simply frame the issue. What is this debate about? At bottom, I think Cohen frames the debate in a way that can be reconstructed as follows:
Approaching the Issue from a Rawlsian Perspective So how might this issue be approached from a Rawlsian perspective. Let' s back up. From PL we know that we start with idea of society as a system of social cooperation among free and equal citizens who possess the two moral powers--the first relating to our ability to have, revise, and act on conceptions of the good, and the second relating to similar abilties with respect to a conception of justice. We then imagine representatives of such citizens in the original position, behind a veil of ignorance, choosing between candidates principles of justice. Let me call your attention to the fact that I am now about to make an important move. Let us put the question posed by Cohen to Rawls is a special session of the Original Position. That is, let's suppose that the representatives have already selected the two principles, and now they must choose whether the principles shall apply to the basic structure--call this the basic structure version of the two principles (for short, the basic structure version)--or whether they should select a variation in which the two principles apply to individual life plans--call this the comprehensive version of the two principles (for short, the comprehensive version. Which version would be selected by the representative of citizens with the two moral powers behind the veil of ignorance? Having tantalized you with the question, I am going to postpone the answer until the next post in this series Micah Schwartzman's Challenge Instead, I am going to switch gears and turn your attention to an argument made by Micah Schwartzman, early on in the ongoing exchange of arguments. Here is what Micah wrote:
Second, Micah might be making a much more ambitious claim. Micah might be claiming that the value of equality that should be incorporated in each and every citizens comprehensive conception of the good is the same value of equality that is reflected in the conception of justice that applies to the basic structure. In particular, each citizen should incorporate the difference principle as a module in the moral theory that orders their life plan and their interactions with fellow citizens. Friday, April 11, 2003
Welcome to A Taxing Blog Courtesy of Greg Goelzhauser, I've just learned about A Taxing Blog--which adverises itself as:
New on SSRN Here is today's roundup:
Jennifer Robbennolt (Missouri), John Darley (Princeton) and Robert MacCoun (U.C. Berkeley, Public Policy) offer Symbolism and Incommensurability in Civil Sanctioning: Decision Makers as Goal Managers, forthcoming in the Brooklyn Law Review. Louis Kaplow and Steven Shavell (Harvard) upload Fairness Versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice. Lucian Bebchuk (Harvard) and Alma Cohen (National Bureau of Economic Research) provide Firms' Decisions where to Incorporate. David Bernstein (George Mason) gives us Lochner's Legacy's Legacy, forthcoming in the Texas Law Review.
Oman's Analysis of Judicial Selection Nate Oman (of A Good Oman) has a post on the judicial selection process that is both amusing and insightful. You really must read it for yourself, but here is something to whet your appetite:
What it is ordered by is a feuding norm. . . . We have a feud between Democrats and Republicans. Unfortunately, the tribes are divided into two kinds of tribesman, those who can kill (Senators) and those who can be killed (judicial nominees). Once the feud starts it will only be possible to retaliate against "innocent" members of the opposing tribe. Friday Workshops Here is roundup:
Correction: At Loyola Marymount, Catherine Fisk does an internal workshop entitled Employment Law without Law? The Dispute Resolution Problem (co-authored with David Schwartz of Wisconsin). At Buffalo, Errol Meidinger presents The Ontology of Property: Reflections of an Unreconstructed Constructionist. At the University of San Diego, two events:
Steve Shavell (Harvard) presents On the Writing and Interpretation of Contracts. Phillip Quinn on Charles Taylor on William James Phillip Quinn (the supersmart & learned guy from Notre Dame) has a review of Charles Taylor's book Varieties of Religion Today: William James Revisited on the wonderful Notre Dame Philosophical Reviews. Here is a tasy morsel:
Interpretation at Binghampton On April 11-12, the 20th Annual Conference on Philosophy, Interpretation, and Culture is on at Binghamton University. Downward Spirals Department Supreme Court Justice Anthony Kennedy has weighed into the debate between Rick Hasen and myself over the politicization of the judicial selection process. Rick has been arguing that the current fights are part of a long term pattern, he describes as a roller coaster. I've been arguing that we are in the midst of a downward spiral of politicization. Here are Kennedy's remarks, made at the University of Virginia:
The Supreme Court cannot tell the Senate how to handle judicial nominations, Kennedy acknowledged during remarks to law students at the University of Virginia. ``But they had better start thinking about the dangers to judicial independence from insisting on nominees that have particular views,'' Kennedy said. ``They are politically elected and act in a political way,'' said Kennedy, who was nominated for the high court by President Reagan. But ``there should be a recognition that a good judge can be willing to change his mind or change her mind.'' Kennedy was asked specifically about the Senate filibuster of one of President Bush's nominees for a seat on a federal appeals court. Democrats are trying to put off a vote on the nominee, lawyer Miguel Estrada, but Kennedy said the real problem is broader. ``What's going on now, there's a lot of fingerpointing, 'Oh, the Democrats are holding this up,''' Kennedy said. ``Both parties have been guilty of this, there's some payback going on here, but I think it's time for them to come together.'' The bitter partisanship surrounding the failed nomination of Robert Bork to the Supreme Court ultimately led to Kennedy's own easy confirmation as a consensus candidate in 1988. The nomination process became even more fraught in 1991, when Clarence Thomas was accused of sexual harassment during his marathon confirmation hearings. He in turn called the process a ``high-tech lynching.'' The nomination battles over lower federal judges play out with far less public scrutiny, but many lawyers and politicians see the Estrada impasse as a dress rehearsal for a political fight over any vacancy on the Supreme Court. Thursday, April 10, 2003
Slippery Slopes Department gTexts has a nice post on Eugene Volokh's (founding parental unit of the United Bloggers of Volokh) Slippery Slopes article. Courstesy of Nate Oman of A Good Oman. If you have not already done so, read Volokh's article also in HTML. Difference Principle Redux Department--Updated Yet Again and Again Andrew Sabl's contribution to the continuing blogospheric eruption on Cohen's critique of Rawls's argument that the difference principle should be limited to the basic structure has drawn a sharp and keen response from Chris Bertram as well as posts by Russel Arben Fox and Matthew Yglesias and Tom Runnacles. Micah at Political Theory Blog pointed me to some of the new posts, Jacob Levy promises to weigh in again. Here is a guide to the posts:
My comment on Bertram, Rawls, and Cohen. Micah Schwartzman's reply to me. Matthew Yglesias reply to Micah. Chris Bertram's comments on Micah, Matthew, and Me. Russell Arben Fox's comment on everyone. Tom Runnacles's comments on all of the above. Andrew Sabl's If You're Such a Liberal, How Come You Love Conformity? on Micah's Political Theory Blog. A brief comment from Jacob Levy on the Volokh Conspiracy. John Eden's Response to Me. Chris Betram replies to Andrew Sabl. New: Russell Arben Fox on Sabl. New: Matthew Yglesias responds to Sabl. New: Tom Runnacles responds to Sabl. New on SSRN Here is the roundup:
The prolific and always interesting Ann Bartow has posted Our Data, Ourselves: Privacy, Propertization, and Gender, forthcoming in the University of San Francisco Law Review. Here is a taste:
Rochelle Dreyfuss (NYU) has uploaded Varying the Course in Patenting Genetic Material: A Counter-Proposal to Richard Epstein's Steady Course. Thursday is Workshop Day Here is today's roundup:
And finally at Boston University's series, Andrew Kull presents Restitution as a Remedy for Breach of Contract. Wednesday, April 09, 2003
Difference Principle Redux Department I have updated my guide to the posts on the ongoing blogospheric eruption concerning Jerry Cohen's critique of John Rawls's argument that the difference principle should be limited to the basic structure. You can scroll down or use this link. When you get there, you will find pointers to new posts on Political Theory Blog and the Volokh Conspiracy. Downward Spirals Department Courtesy of the Rick Hasen's super Election Law Blog, this story from the Washington Post suggests that democrats may filibuster Patricia Owen, a Bush nomine to the U.S. Court of Appeals. Are we bottoming out on a roller coaster ride (as Rick suggests) or is the another move in a downward spiral of politicization (as I contend)? I hope that Rick is right, but I fear he is not. Also, check out this post from Howard Bashman of How Appealing. Rawls and Nozick Right around 1980, I was in the philosophy department at UCLA. I have vivid memories of a wonderful class on Utilitarianism with the late Greg Kavka, and terrific courses, one on Kant and the other on Rawls and Nozick by the late Jean Hampton. All of this is by way of introduction to two posts on Chris Bertram's Junius:
--the second to a tribute to the late John Rawls. New on SSRN Here is the roundup of paper posted yesterday afternoon and this morning:
Cindy Schipani and Timothy Fort (University of Michigan, Business) upload Adapting Corporate Governance for Sustainable Peace What is this about? Here is part of the answer:
Tuesday, April 08, 2003
Lessig on Pennsylvania IP Blocking Statute Larry Lessig posts on the Pennsylania statute allowing the Penn AG to get a secret order blocking the IP Addresses of servers that provide child pornography. And if you are interested, Jonathan Zittrain has a very fine paper on this topic, available on SSRN: Points of Internet Control. And Minn Chung & I have a paper with a section on this topic, The Layers Principle: Internet Architecture and The Law, which will go up on SSRN soon. Update: Orin Kerr (of the Volokh Combination for the Monopolization of the Blogosphere) has a really excellent analysis of Larry's post, get it here. Difference Principle Redux Department--Updated
My comment on Bertram, Rawls, and Cohen. Micah Schwartzman's reply to me. Matthew Yglesias reply to Micah. Chris Bertram's comments on Micah, Matthew, and Me. Russell Arben Fox's comment on everyone. Tom Runnacles's comments on all of the above. Update, additional post: If You're Such a Liberal, How Come You Love Conformity? on Micah's Political Theory Blog. Update to the Update, another post: And a brief comment from Jacob Levy on the Volokh Conspiracy.
Bring Back Seditious Libel? Micah Schwartzman offers the following provocative idea on Political Theory Blog:
Grotius Interview Dean Falvy's interview with Grotius is a must. Here is a taste:
Monday, April 07, 2003
New on SSRN A spate of new scholarship was posted to SSRN today. Here is the roundup:
Joanna Shepherd (Clemson, Economics) uploads Are Criminals Like Us? Risk Attitudes, Sentencing Guidelines, and Increased Crime. Elizabeth Garrett (Southern California) offers up Legislating Chevron, forthcoming in the Michigan Law Review. Here is an excerpt from the abstract:
A Critical Introduction to Liberalism The Examined Life has a nice online article entitled A Critical Introduction to Liberalism. This courtesy of PoliticalTheory.Info--read it every weekday! Muller on Scalia in the Michigan Affirmative Action Cases Eric Muller (a guest of the Honorable and Learned Guild of Volokh Bloggers) has a very nice post on a question posed by Scalia in the oral arguments in the University of Michigan affirmative action cases:
Monday Workshops Here is the roundup:
At NYU, Geoffrey Miller is workshopping something. Anyone know the title? Catching Up Department I just caught up with Cass Sunstein's Academic Fads and Fancies. Here is a taste:
The Two Faces of Bloggers Daniel W. Drezner, blogging from the Midwestern Political Science Association reports on the initially uncomfortable realization that his professional colleagues were reading his blog. Here is a tidbit:
Libertarianism Without Inequality Mike Otsuka (University College, London) has a new book entitled Libertarianism Without Inequaity. Here is a synopsis:
Sunday, April 06, 2003
Off Topic Department I do my best to resist the temptation to opine on the great issues of the day--or even to link to the opinions of others, but I thought this essay on Democratic Imperialism by Stanley Kurtz was too provactive to ignore. Here is a tidbit:
Downward Spirals Department Rick Hasen posts email from a reader who argues in favor of the downward spiral thesis. And Rick has more on the question whether delay in special panels decision on the constitutionality of the McCain-Feinbold bill is inexcusable in this post. New on SSRN this Weekend There are a few new papers on SSRN this weekend. Here are two of relevance to Legal Theory:
Ideology and Law School Faculty Hiring John McGinnis & Matthew Schwartz have an op/ed on the role of ideology in law school faculty hiring. Here are the key paragraphs:
--Law & Econ Centric versus Rights Centric (or ex ante versus ex post or consequentialist versus deontological) --Neoformalist versus Neoinstrumentalist --Egalitarian (in many contending forms) versus Anti-Egalitarian (in just as many forms) --Theoretical versus Antitheoretical --Radical versus Liberal This is not to say that McGinnis and Schwartz are wrong at a fundamental level. It is a common place observation that law school faculties tend to be more liberal than the population at large, and that the academic left is much more varied and radical than the mainstream political left. Moreover, it is clearly true that the legal academy has been politicized. This should come as no surprise. The judiciary has been politicized, and it would be remarkable if the legal academy did not follow suit. If judges view legal arguments as mere makeweights, the stuff you have to put in before you announce the result you want, then one possible role of the legal academy is makeweight generation. Law professors can churn out the memes that swirl around the space of legal discourse and eventually infest the opinions of courts high and low. Some law professors see hiring as an extension of politics, and to the extent that has resulted in imbalance, the legal academy is surely the worse for it. An Alternative But there is an alternative. The legal professioriate could go in another direction. We might see ourselves as scholars. We might see truth as the highest virtue of legal scholarship and sophia, theoretical wisdom, as the highest virtue of legal academics. This is surely a live possibility. Politicization of the academy is not dictated by any iron law of history. So the question is: how can we get there from here? How can we move from a politicized legal academy to an academic legal academy? I wish I knew. But here is something I do know. We won't get there by hiring proportionate numbers of ideologues from the left and right. Indeed, that practice might have the perverse result of crowding out truly intellectual candidates from the left and the right altogether. I'm all for balance; I'm all against balanced politicization. Review of Soper Leslie Green (York) has a review of Philip Soper's The Ethics of Deference: Learning from Law and Morals on Notre Dame Philosophical Reviews. Here is a taste:
Saturday, April 05, 2003
Intergenerational Justice Lukas Meyer has posted a wonderful and comprehensive entry to the Stanford Internet Encyclopedia of Philosophy on Interngenerational Justice. And here are some musings of my own on this vast and intricate topic. Link courtesy of Online Papers in Philosophy, a truly valuable and much appreciated resource. Auerbach on New Top Level Domains Karl Auerbach (ICANN Director and all around genius) has posted regarding the controversy over new generic Top Level Domains. Here is an excerpt from Karl's very articulate remarks, entitled Why Lotteries Are Better Than Auctions When Distributing New TLD Slots:
--There is a tremendous need for TLDs that serve the non-English speaking, non-European, non-Wealthy regions and peoples of the world. There is a special need for gTLDs using IDN for LDCs. --Some gTLDs may provide what economists call "public goods," which by definition cannot effectively be provided by markets. An Alternative to Pure Lotteries So how can we accomplish both goals. Getting commercial gTLDs to their highest and best economic use, while preserving some of the root for nonprofit, third-world, and/or public good gTLDs. There are a number of possible solutions to this problem. Here are some:
--Use the proceeds from the lotter to subsidize the development and start-up of IDN gTLDs targeted at LDCs. My colleague, Karl Manheim, and I have written a short position paper on this issue, called Equity Enhancing Auctions. --Use a streamlined, low-cost "beauty contest" procedure to qualify a certain number of public-good gTLDs for free entry into the root. Additional Resources on the Net Here are some links to additional resources on the Net:
--The Case for gTLD Auctions: A Framework for Evaluating Domain Name Policy (an auction proposal by Karl Manheim and myself). --The post-.COM Internet: A Five-Step Process for Top Level Domain Additions (an auction proposal by Milton Mueller and Lee McKnight). --Blogging from Brazil (my reports on the Rio de Janeiro meeting of ICANN. New on SSRN Two more papers went up late on Friday:
Fletcher on a War Crimes Tribunal for Iraq Also new on Findlaw, George Fletcher has a very nice post that speculates that the administration plans to create a military tribunal to try war crimes by Iraqi's. Here is a tidbit:
Vik Amar on Ex Post Facto Laws Vikram Amar's most recent Findlaw column is on ex post facto laws. Here is a taste:
Knowledge and Personality Vik writes that that when an ex post facto law is passed, legislators know (or can know) who the law will affect, but of course this problem is shared by prospective laws as well. In fact, some prospective laws target narrow, identifiable groups, whereas some retrospective laws target large (and difficult to identify groups). Vik also writes that legislatures are supposed to make rules that have nothing to do with individual personalities. I'm not quite sure what Vik means, but it seems obvious that this is really a problem with bills of attainder and not with ex post facto laws--because the identifiability problem is the same as the knowledge problem discussed just above. So What Is the Rationale of the Prohibition on Ex Post Facto Laws Heck if I know! But it seems to me that the best theorizing on this issue goes along the lines suggested by Lon Fuller, and focuses on rule-of-law values. The problem with ex post facto laws is that individuals cannot shape their behavior so as to avoid violations of the law--since the law is not announced in advance. But this is one of the fundamental purposes of law, and it is required if law is to act as a safeguard of individual liberty. Read Vik's fine article! Friday, April 04, 2003
New on SSRN Several new papers have just gone up on SSRN. Here is the roundup:
Hugo Cerqueira (Universidade Federal de Minas Gerais) posts Reading Adam Smith: New Approaches Bruno Frey and Simon Luechinger (University of Zurich, Institute for Empirical Research in Economics) offer How to Fight Terrorism: Alternatives to Deterrence. Allan Feldman and Jeonghyun Kim (Brown, Economics) provide The Hand Rule and United States v. Carroll Towing Co. Reconsidered. Hot Downloads Department Oren Gross's Chaos and Rules is out in the March issue of the Yale Law Journal. Get it while its hot! Just War Theory--Update Here is an update to my evolving collection of links on just war theory:
:: New: Peter Singer, Nothing justifies valuing one life ahead of another. :: New: The Independent on Jus in Bellum. :: The University of San Diego has a nice resource page here. :: Aquinas on War. :: Michael Walzer, Just and Unjust Wars: A Moral Argument With Historical Illustrations (paperback ed. 2000). :: There is an entry titled Just War Theory in the Internet Encyclopedia of Philosophy :: Another collection of links. :: Vincent Ferraro, Principles of the Just War. :: Alexander Moeser's paper Just War Theory in a Changing World. :: Wendy McElroy, Libertarian Just War Theory. :: American Center for Law and Justice Just War Theory and Iraq. :: Interview with Robbie George (NRO). Weatherall's Law I have added a link to the sidebar for Weatherall's Law, a very well-done blawg by Kim Weatherall (who does Property Theory, IP, & Internet-related work) from the University of Sidney. Phillips on the Use and Abuse of Culture At Oxford's Research Seminar in Political Theory, Anne Phillips (London School of Economics) presents The Uses and Abuses of Culture: Thinking Through the Feminism/Multiculturalism Debate. Downward Spirals Department My colleague Rick Hasen has two (make that three) new posts (here and here) and new: here on filibusters of judicial nominees. Courtesy of Rick and his readers, National Review Online has a piece by Byron York on the current state of affairs. Of 19 Bush nominees to the Courts of Appeals, 12 are currently blocked, 2 have been confirmed, and 5 are new nominations on which the Senate has yet to take serious action. Of this situation, York writes:
Death Spirals Asymmetrical perceptions are dangerous, because they can easilty lead to a downward spiral of politicization. If both sides believe that the other side is escalating first, then each side feels justified in taking even extreme measures, which in turn reinforce the likelihood that politicized judges will be selected and that sitting judges will become more politicized. Where does this lead? Here is my post on the end result of a death spiral. And Some More on Nominations from the Blogosphere Check out Sam Heldman's posts: Democracy in the Digital Age at Yale Yale Law School's Information Society Project hosts Democracy in a Digital Age today (April 4) through Sunday (April 6). The lineup is exciting and includes the following sessions:
Thursday, April 03, 2003
The Two Justice Harlans Greg Goelzhauser has an excellent post (or here if you hit the archive bug) on the two Justice Harlans, Plessy and Poe v. Ullman, responding in part to another fine post by Tung Yin. New Papers--Get 'em while their hot! Here are some new papers, just up on SSRN:
Mind Blowing I usually shy away from such deep stuff as the mind-body problem, but I was much taken with Tom Nagel's essay The Psychophysical Nexus. Here is the passage where he introduces his speculative hypothesis:
Anarchy & Chaos Randy Barnett (Boston University) lectures today at the University of Colorado at Boulder. His lecture is entitled: "Anarchy is Not Chaos." Particulars: 7:00 p.m., Hale 270. Barnett is a preeminent libertarian legal theorist, and his book, The Structure of Liberty is a contemporary classic. This should be very interesting. The web page for the talk is here. Thursday is Workshop Day Here is the roundup from hither and yon:
At George Mason, Robert Scharff does an internal workshop on The Effect of Changes in the Voting Population on Optimal Candidate Strategy: The Case of Cigarette Smoking. At Boston University, the amazing Suzanna Sherry (Vanderbilt) delivers How I Learned to Stop Worrying And Love Judicial Review. What Kubrick fan could resist that title? At Princeton’s political philosophy series, Patrick Deneen (Princeton) offers up Democratic Faith. Here is a morsel:
Coleman on the Grounds of Welfare Jules Coleman's (Yale, law and philosophy) continues his visit to Law & Philosophy Program at the University of Texas continues today, with his presentation of "The Grounds of Welfare" to Larry Sager's Colloqium in Legal and Constitutional Theory. Brian Leiter's series is surely the envy of legal philosophers everywhere. Classics Department Courtesy of Political Theory's sidebar, this link to Harry Frankfurt's wonderful essay, On Bullshit. Here is how it begins:
New from Oxford University Press Here are the latest new releases from Oxford:
Jules Coleman's (Yale) The Practice of Principle is also out in paperback. Susan Marks's (Cambridge) The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology joins the parade. Wednesday, April 02, 2003
Review of Posner's Law, Pragmatism, and Democracy Courtesy of the really super Greg Goelzhauser's blog and PoliticalTheory.Info, the Washington Post has a review of Richard Posner's new book, Law, Pragmatism, and Democracy. Here is a tiny tidbit:
Difference Principle Redux Department Tom Runnacles (here [link fixed] is his blog) has (via email) responded to my post on Cohen's critique of Rawls re the limitation of the two principles to the basic structure. This is just the latest in a series of posts on this topic. Before I get to Tom's very intelligent response to my post, here is an updated guide to the Rawls/Cohen blogospheric emanantion:
My comment on Bertram, Rawls, and Cohen. Micah Schwarzman's reply to me. Matthew Yglesias reply to Micah. Chris Bertram's comments on Micah, Matthew, and Me. Russell Arben Fox's comment on everyone.
Gardner on the Legality of Law John Gardner has a wonderful paper entitled The Legality of Law brought to my attention via Online Papers in Philosphy and Gulliver's Travels. Here is a taste of Gardner's shining prose:
Online Papers in Philosophy I've added a link to the sidebar for the really terrifice resource, Online Papers in Philosophy. I was alerted to this by the excellent Gulliver's Travels. New Today on SSRN Here are the most recent papers, fresh from this mornings uploads:
Keith Hylton (Bosont University) uploads A Framework for Reparations Claims. Hylton's paper compares different reparations claims in terms of their goals and viability as tort suits, and contrasts two approaches observed in the claims: a "doing justice" model, which involves seeking compensation in important cases of uncorrected or uncompensated injustice; and a "social welfare" model that seeks to change the distribution of wealth. Claims under the first category are far more consistent with tort doctrine and likely to meet their goals than the social welfare-based claims. Statutory Construction Zone I've added a link to the sidebar for the Statutory Construction Zone. The link is courtesy of Nate Oman of the most excellent A Good Oman. Downward Spirals Department My colleague Rick Hasen posts on a change in the Senate Judiciary Committee's blue slip procedure. The issue arose in connection with Carolyn Kuhl's nomination to the Ninth Circuit. Here is an excerpt from the L.A. Times story:
Khanna's Theory of Corporate Crime Legislation Vikramaditya Khanna has posted A Political Theory of Corporate Crime Legislation on SSRN. Here is a crunch morsel from the abstract:
Wolff on Redistribution Jo Wolff (University of London, University College) has a very fine position paper entitled The Message of Redistribution: Disadvantage, public policy and the human good from Catalyst. Stuart White has a reply. Links courtesy of the always valuable and intelligent Junius. Catching Up Department I somehow missed Daryl Levison's (NYU and Virginia) Collective Sanctions, up on SSRN last week. Here is a taste from the abstract:
Coleman at Texas Jules Coleman (legal philosopher extraordinaire) is visiting Brian Leiter's power-packed Law & Philosophy Program at the University of Texas through Saturday. Tomorrow (April 3) he will present "The Grounds of Welfare" to Larry Sager's Colloqium in Legal and Constitutional Theory. On Friday, April 4, Coleman will deliver the 2nd Annual Leon Green '15 Lecture in Jurisprudence on the topic "The Point of Tort Theory." Tuesday, April 01, 2003
University of Michigan Affirmative Action Cases The United States Supreme Court hears oral argument today in the two University of Michigan affirmative actions cases. Here are some resources and links from the Legal Theory perspective and others:
Ethics Updates has a nice resource page on Race, Ethnicity and Multiculturalism--a good starting point for philosophical perspectives on the general issues. New: Dahlia Lithwick comments on Slate. Linda Greenhouse of the NY Times on the Oral Argument. New: Transcript in Gratz. Transcript in Grutter. Audio is available here. BBC, Should Universities Ban Affirmative Action. Washington Post, Affirmative Action Under Attack. Robert Allen, Rawlsian Affirmative Action: Compensatory Justice as Seen from the Original Position SCOTUS Blog has a report. Howard Bashman reports from How Appealing: here and here and New: here. University of Michican's resource page. President Bush's remarks on the cases. New: A post from the Volokh Conspiracy on viewpoint diversity & the cases. Bibliography from the Stanford Encyclopedia entry:
New on SSRN Here are more new papers on SSRN:
Molly Holman (Christie, Parker & Hale) & Stephen Munzer (UCLA) post Intellectual Property Rights in Genes and Gene Fragments: A Registration Solution for Expressed Sequence Tags, forthcoming in the Iowa Law Review. Andrew Robertson and Michael Bryan (both Melbourne) offer On the Distinction between Contract and Tort. Ruth Buchanan (University of British Columbia) and Sundhya Pahuja (Melbourne) give us Collaboration, Complicity and Cosmopolitanism, forthcoming in the Nordic Journal of International Law. Here is a taste from the abstract:
Difference Principle Redux Department My post on the Gerry Cohen's critique of Rawls's difference principle (and G.A. Cohen's critique thereof) seems to have generated a minor disturbance in the blogosphere. In a nutshell, we might describe the issue between Rawls and Cohen as follows:
Coase At the University of Chicago today, the Coase Lecture is presented by Ronald H. Coase, Clifton R. Muser Professor Emeritus, University of Chicago Law School. Professor Coase's topic for the Coase lecture is, well, Coase. The title, however, is The Present and Future of Law and Economics. I wish that I were in Chicago today! Google Problem: If Google has been sending you to the March Archive of Legal Theory Blog, you can get to the latest posts, by clicking here. |