Legal Theory Blog |
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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Monday, June 30, 2003
An Egalitarian Theory of Judicial Review Ronald C. Den Otter's article DEMOCRACY, NOT DEFERENCE: AN EGALITARIAN THEORY OF JUDICIAL REVIEW just became available on Westlaw and at 91 Ky. L.J. 615. Here is a taste:
New Papers on the Net Here is today's roundup:
Seltzer on New Top Level Domains I seem to be in cyberlaw mode today! Surf over to wendy.seltzer.org for more on the decisions made in Montreal by ICANN on new top level domains. Trespass to Chattels & the Internet: RIP? The use of the tresspass to chattels tort as a device to enforce rights on the Internet has been hugely controversial. The California Supreme Court has reversed the California Court of Appeals decision in Intel Corp. v. Hamedi (see also the trial court decision). Here is a link to the California Supreme Court decision. And here is a taste:
Blogging from Montreal: Roundup Last week, I posted several times from the ICANN meetings in Montreal. Here is a guide to the posts:
Part 2 (Sunday, June 22, 2003): The GAC Open Meeting. Part 3 (Monday, June 23): The Non Commerical Users Constituency Meeting. Part 4 (Tuesday, June 24): The GNSO Council. Part 5 (Tuesday, June 24): The Request for Proposals for new sTLDs. Part 6 (Wednesday, June 25): Who Owns the Root? The ccTLDs and ICANN. Part 7 (Wednesday, June 25): More on gTLD expansion. Barnett on Lawrence and the Thomas Dissent Surf over to the Conspiracy here and go to NPR for Real Audio here for Randy Barnett's analysis of Justice Thomas's dissent in Lawrence. Saturday, June 28, 2003
Copyright and "the Progress of Science" Stripped of the references to patent, the copyright clause of the constitution would read: "Congress shall have Power To promote the Progress of . . Science . . . by securing for limited Times to . . . Authors. . .the exclusive Right to their respective . . . Writings." Via David Post of the Conspiracy, I learned that there is a campaign to strip science out of the protection of the copyright laws. Here is an exerpt from the description of the Public Library of Science Campagin:
Harry Potter and the International Order of Copyright Tim Wu has a nice piece on Slate on character appropriation. Here is a taste:
Friday, June 27, 2003
New Papers on the Net Here is today's roundup:
The case includes a teacher's manual followed by a background memo and term sheet intended for distribution to the students.
This review finds much to admire in the Ackerman-Ayres reform proposal. But it criticizes some minor administrative details of the reforms and raises two broader concerns: that the injection of up to $5 billion in public money into each campaign cycle might lead not to more deliberative democracy but to even more mind-numbing, trivial campaigns and that the amount of private money in federal campaigns may not be, after all, so large as to excite concern.
The net benefits of accepting this objective will depend on how the legal system can actually support problem-solving. This article discusses seven possible areas of implementation. A legal system attuned to problem-solving will be more open towards different types of interests and will stimulate the parties to find creative value-maximizing solutions. The perspective of problem-solving underlines the need to improve access to court, and more in general to reduce bargaining ranges by enhancing the way the legal system provides 'batnas'. If this is done, distribution of value will become easier and the effects of bargaining power can be diminished. Stressing the use of objective criteria, the perspective contains an invitation to redesign the rules of substantive private law so that they give better help to the negotiating parties when they deal with distributive issues. Useful objective criteria for distributive issues may be continuous instead of binary. Multiple objective criteria can exist next to each other. They do not have to be binding, but can be adjustable to individual differences in valuation of interests, different ways of creating value, and dissimilar external circumstances. The perspective of problem-solving also invites us to rethink the processes of contracting and dispute resolution, the role of blaming, and the principle of autonomy. Although many of the proposals suggested by this perspective are not new, it may help to develop a more coherent vision on reform of the civil justice system.
Lynn Lopucki and Joseph Doherty (UCLA) upload The Determinants of Professional Fees in Large Bankruptcy Reorganization Cases, forthcoming in the Journal of Empirical Legal Studies. Sonia Oreffice (University of Chicago, Economics) posts Abortion and Female Power in the Household Evidence from Labor Supply Thomas Ulen (Illinois) post A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law, forthcoming in the University of Illinois Law Review. Richard McAdams and Thomas Ulen (Illinois) post Introduction to the Symposium on Empirical and Experimental Methods in Law, forthcoming in the University of Illinois Law Review. Frist Memo on the Process for Confirming Supreme Court Nominees Courtesy of Howard Bashman:
Volokh on Thomas Surf to Eugene Volokh's column on MSNBC (GlennReynolds.com) for a terrific column on Justice Thomas & the affirmative action cases. Here is a taste:
The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn’t a proper basis for constitutional decisionmaking. Thursday, June 26, 2003
Lawrence v. Texas Decided--Updated at 3:01 PM EDST
Introduction The Supreme Court has decided Lawrence v. Texas, 6-3 to strike down the Texas statute. Justice Kennedy wrote the majority opinion, stating the law "demeans the lives of homosexual persons." This post, which will be updated periodically, provides basic information on the opinion, reactions, and most especially relevant legal theory resources. From the AP Report on the New York Times:
--The major disagreement between Kennedy and Scalia was about the doctrine of stare decisis. Kennedy needed to argue that reversal of Bowers was consistent with the discussion of the role of precedent in Casey Scalia charges the majority with inconsistency, and devotes a substantial portion of his dissent to Roe v. Wade, clearly weakening the dissent as an intellectual matter. --Scalia argues that the majority employed "rational basis scrutiny," but having read and reread Kennedy's opinion, I think this is just plain wrong. Althouigh there is ambiguity, it looks like a fundamental rights decision to me. (Update: Unlearned hand reacts to this here.) --The majority relied extensively on historical evidence that homosexuals were not singled out for special treatment by early anti-sodomy laws and on evidence that such laws were rarely enforced (or enforceable under the then-prevailing rules of evidence and criminal procedure.
--Concurring Opinion (O'Connor) --Dissenting Opinion (Scalia, joined by Rehnquist and Thomas) --Dissenting Opinion (Thomas)
In Griswold the Court invalidated a state law prohibit- ing the use of drugs or devices of contraception and coun- seling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. * * * The Court began its substantive discussion in Bowers as follows: The issue presented is whether the Federal Con- stitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being pun- ished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the rela- tionship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in inti- mate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosex- ual persons the right to make this choice. Having misapprehended the claim of liberty there pre- sented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae; Brief for American Civil Liberties Union et al. as Amici Curiae; Brief for Professors of History et al. as Amici Curiae. We need not enter this debate in the attempt to reach a defini- tive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no long- standing history in this country of laws directed at homo- sexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime- against-nature statutes as criminalizing certain relations between men and women and between men and men. * * * Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convic- tions for which there are surviving records were for preda- tory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. * * * It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. * * * Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding prece- dent. Bowers v. Hardwick should be and now is overruled.
James Gerstenzang & Nick Anderson's Los Angeles Times Story. Charles Lane's Washington Post Story. Gays Joyful, Relieved Over Court Ruling (AP in Washington Post) Houston Chronicle report US court to rule on gay case (BBC) Sodomy ruling expected today (Daily Texan) Supreme Court expected to issue ruling on sodomy laws (CNN)
--Randy Barnett. --Jack Balkin. --Clayton Cramer. --Glenn Reynolds. --Dahlia Lithwick. Tyler Cowen-- --The Raving Atheist. --Unfogged.
Human Rights Campaign EQUAL RIGHTS, NOT GAY RIGHTS by Nigel Ashford Robin West, "Universalism, Liberal Theory, and the Problem of Gay Marriage Toni M. Massaro, Thick and Thin Arguments for Gay Constitutional Rights Glenn H. Reynolds & David B. Kopel, THE EVOLVING POLICE POWER: SOME OBSERVATIONS FOR A NEW CENTURY The Gays Rights Controversy A Law Professor's Guide to Natural Law and Natural Rights
Stephen Macedo, "Homosexuality and the Conservative Mind," and "Reply to Critics" (Robert George and Gerard Bradley, and Hadley Arkes), Georgetown Law Journal, v. 84 (December 1995). Lazarus on Equal Protection Edward Lazarus has a Findlaw column entitled The Supreme Court And Equal Protection: Why This Term's Momentous Affirmative Action and Same-Sex Sodomy Cases Have Put the Doctrine To the Test. Read it! Dorf & Adler Michael Dorf (Columbia) and Matthew Adler (Pennsylvania) have posted Constitutional Existence Conditions and Judicial Review. Here is the abstract:
Korsgaard and Parfit Christine Korsgaard (Harvard, Philosophy) has posted a paper entitled Normativity, Necessity, and the Synthetic a priori: A Response to Derek Parfit. From the abstract:
New Papers on the Net Here is the roundup:
Hugh LaFollette posts World Hunger. Simon Keller posts Welfare and the Achievement of Goals Fred Gramlich (U.S. Department of Justice, Antitrust Division) posts Coupon Remedies in Antitrust Cases: The Form of the Discount also Matters Wednesday, June 25, 2003
Eve Tushnet on Stare Decisis Check out her post here. Tushnet has a really excellent post replying to my three part series on stare decisis (Part I, Part II, Part III). I will post a reply in a day or two. Blogging from Montreal: Part 7
--International Air Transport Association (.travel). --International Confederation of Free Trade Unions (.union). --Universal Postal Union (.post). --Nokia (.mobi). Just What Is A Sponsored TLD Anyway? Heck if I know, but here is what the draft RFP says:
Evaluating the Proposed "Montreal" Round What should we make of this very limited plan for expansion of the root? Certainly an argument can be made that this is a part of an absurdly slow process of root expansion. But how could expansion move more quickly at this stage of the game? Here are some possibilities:
--A steady-state market-driven expansion, e.g. a commitment to the auctioning of a few dozen new TLDs per year. --An open-ended beauty contest, e.g. a repetition of the process followed in the year 2000. Next Steps So what is ICANN to do? Given Stuart Lynn's legacy (the commitment to creating a small number of new sponsored Top Level Domains through a beauty-contest mechanism, it is not clear that ICANN has many feasible options. If the Lynn proposal were expanded, there would be a real danger of lock-in to a beauty contest mechanism as a template for future root expansion. Perhaps ICANN could simply abandon the Lynn proposal, but that would mean no expansion of the root. What is really needed is a fundamental rethinking of root allocation policy. And ICANN needs help in that enterprise. At a minimum, ICANN nees input from economists and policy scientists familiar with similar resource allocation problems--such as those faced by the Federal Communications Commisssion. The Long Run And in the long run, the root resource should be put to its highest and best use. The best way to accomplish that goal is by conducting regular auctions of a significant number of slots, as Karl Manheim and I have proposed in An Economic Analysis of Domain Name Policy. Guide to Blogging from Montreal Posts. Blogging from Montreal: Part 6 There is a very nice post from nhklein on ICANN Watch, touching both on whois and on the difficulties with establishing the ccNSO (the supporting organization for ICANN that consists of the various entities that operate ccTLDs. This is surely one of ICANN's most difficult problems, and in my opinion it stems from a fundamental ambiguity in the nature of ICANN. Here is quote from the post:
Guide to Blogging from Montreal Posts. Game Theory and the Dormant Commerce Clause Maxwell L. Stearns (George Mason) has posted A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Bela Plechanovova (Charles University, Prague) posts The Treaty of Nice and the Distribution of Votes in the Council – Voting Power Consequences for the EU after the Oncoming Enlargement, on SSRN and European Integration online Papers (EIoP). Paul Tremblay (Boston College) posts Moral Activism Manque, forthcoming in the South Texas Law Review. Jeanne Schroeder (Cardozo) uploads Envy, Jealousy and Insider Trading: The Case of Martha Stewart. Thomas Berg (University of St. Thomas) posts Vouchers and Religious Schools: The New Constitutional Questions, forthcoming in the University of Cincinnati Law Review. Tuesday, June 24, 2003
Garamendi Sasha Volokh has a great post on American Insurance Associationn v. Garamendi--the foreign policy preemption case from yesterday. Blogging from Montreal: Part 5
• The proposal will move ICANN in the direction of the worst of all resource allocation models, the beauty-contest approach. ICANN should learn from its own painful experience in November 2000 and from the 75 years of failure at the FCC under the beauty contest model. Of all the decisions that ICANN could make now, moving towards the beauty-contest model is the worst-possible decision. • The criteria in the proposal will have the unintended consequence of favoring well-finance globalized non-profit membership organizations at the expense of regional, relatively poorer institutions that serve the needs of communities in third world. • The criteria in the proposal will focus the decision-making process on the characteristics of the applicant (responsiveness to community, etc.) rather than the usefulness of the new sTLD. The experience of the FCC teaches that is an inherent problem in the beauty-contest model. • The best options for solution of ICANN’s short-run problem are entirely mechanical or objective allocation systems. One such proposal is to grandfather in all the qualified applications from the November 2000 round. Other possibilities are to grandfather all qualified applications from non-profit institutions. • ICANN should establish a task force to design a rational policy that will put the root to its highest and best use and avoid the substantial institutional problems produced by the beauty-contest model.
The Bad News But there is bad news as well. The RFP is part of an elaborate "beauty contest" approach. An elaborate application must be submitted and evaluated by independent evaluators. The criteria include the following:
A Comprehensive Study of Root Resource Policy In the short run the RFP is not terribly important. A few sTLDs will be created. Although there is a lot of window dressing, this is really a grandfathering process. In the long run, some very important issues need to be addressed, and a comprehensive study of root resource policy is exactly what is needed. For some thought by Karl Manheim and me on these issues, see An Economic Analysis of Domain Name Policy. More tomorrow. Guide to Blogging from Montreal Posts. Blogging from Montreal: Part 4 It is Tuesday afternoon in Montreal and the GNSO council is discussing the report on expansion of the name space. On the one hand, this report represents a step forward. So far, ICANN's basic policy toward the root has been to waste the resource. Although the root could comfortably support a thousand to ten-thousand additional top level domains (TLDs), expansion of the root has been proceeding at a snails pace. Here is the recommendation in the GNSO report:
Nonetheless, the GNSO Council approved the report unanimously. Guide to Blogging from Montreal Posts. Marston on the affirmative action cases Check out his post entitled "Curmudgeonly Thoughts on Grutter v. Bolllinger." Here is an excerpt:
Update: Also, check out this post by John Eden on the Legal Theory Annex. The Layers Principle and NAT In a post entitled Oh no, Not Nat!, Eric Rescorla (Educated Guesswork) discusses an important question about the relationship between NAT (Network Address Translation) and the the layered nature of Internet Architecture. Rescorla is reacting to a post by Ed Felten, commenting on The Layers Principle: Internet Architecture and the Law by Minn Chung and me. The battle for the Constitution? Cal Thomas has an op/ed with the above title. Here is an excerpt:
Senate Rules Committee Votes to Limit Filibusters of Judicial Nominees See this AP Report. Here is a snippet:
Balkin on Affirmative Action and Judicial Selection Reacting to a story in the New York Times, Jack Balkin has a thoughtful post on the possible effects of the affirmative action decisions on appointments to the Supreme Court. Here is a taste:
Updated Post on the Affirmative Action Cases Yesterday, I put up a long post on the affirmative actions cases, which has been updated several times. It includes a variety of resources on the cases, emphasizing the theoretical and normative questions. Scroll down or click here. 25 Years Howard Bashman has an excellent post that starts with an email from a student at Harvard:
For my views on the role of stare decisis, see The Case for Strong Stare Decision, or Why Should Neoformalists Care About Precedent?, in three parts:And be sure to read the posts by Bashman and Hasen. Klarman: Is the Supreme Court Irrelevant? Michael Klarman (Virginia) posts Is the Supreme Court Sometimes Irrelevant?: Race and the Southern Criminal Justice System in the World War II Era. Here is the abstract:
New Papers on the Net Here is the roundup:
Javier Martinez-Torron posts The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief: The European Convention on Human Rights. Hassan El Menyawi posts In Search of a Definition of Property: Conceptualizing property as need-actions. Adam C. Reynolds posts Dimension of Justice in Italy: a Practical Review. Viola Heutger posts Law and Language in the European Union. Monday, June 23, 2003
New Papers on the Net Here is the roundup:
Blogging from Montreal: Part 3 It is Monday afternoon, and I am blogging from the NCUC (Non Commercial Users Constituency) meeting. Milton Mueller started the meeting off with an introduction. One of Mueller's points concerned his perception that the GAC (Government Advisory Committee) is asserting a greater role within ICANN. In particular, Mueller asserted that the GAC was attempting to get the ICANN Board to act on WIPO II without going through the constituencies process. Mueller suggested that this was a harbinger of the possible evolution of ICANN in the direction of an intergovernmental or quasi-international organization. Wendy Seltzer then made a short presentation on the At Large Advisory Committee. The ALAC is supposed to establish a structure by which individuals can be represented in the ICANN process. Individual participation in ICANN is, of course, hopeless. The costs of participation are huge. The benefits of participation for an individual are miniscule. So the At Large process has come to focus on intermediary organizations. But as Mueller points out, this creates a certain tension between ALAC and NCUC--they are both interested in attracting an overlapping set of organizations to participate in the ICANN process. Update: Check out Mueller's ICANN Watch post here. Guide to Blogging from Montreal Posts. Library Internet Filetering Decision: Updated 3:48 PM EDST Here is a link to today's opinion in United States v. American Library Assn., Inc. Rehnquist authored an opinion in which O'Connor, Scalia, and Thomas, joined. Kennedy and Breyer each wrote separate concurring opinions. Stevens and Souter (joined by Ginburg) each wrote separate dissenting opinions. Contrary to several media reports, there is no majority opinion. Reuters reports that the Supreme Court has uphold the statute mandating Internet filtering at public libraries. Here is a short excerpt:
Update: Must read post by Eugene Volokh here. Affirmative Action Decisions: Updated on 06/23/2003 at 6:14 AM EDST This post includes links to the opinions, an excerpt from O'Connor's opinion in the law school case, links to media reports, links to posts in the blogosphere, and legal theory resources.
The Law School’s educational judgment that such diver-sity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits. * * * In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified indi-viduals of every race and ethnicity. All members of our heterogeneous society must have confidence in the open-ness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v. Painter, supra, at 634. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America. * * * That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the require-ment of individualized consideration. When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to en-sure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The impor-tance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke, supra, at 318, n. 52 (opinion of Powell, J.) (identi-fying the “denial . . . of th[e] right to individualized consid-eration” as the “principal evil” of the medical school’s admissions program). Here, the Law School engages in a highly individual-ized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contrib-ute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. Unlike the program at issue in Gratz v. Bollinger, ante, the Law School awards no mechanical, predetermined diversity “bonuses” based on race or eth-nicity. See ante, at 23(distinguishing a race-conscious admissions program that automatically awards 20 points based on race from the Harvard plan, which considered race but “did not contemplate that any single characteris-tic automatically ensured a specific and identifiable con-tribution to a university’s diversity”). Like the Harvard plan, the Law School’s admissions policy “is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, al-though not necessarily according them the same weight.” Bakke, supra, at 317 (opinion of Powell, J.). * * * It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
--David Stout in the New York Times. --Reuters. --Video of student reaction in Ann Arbor.
Ethics Updates has a nice resource page on Race, Ethnicity and Multiculturalism--a good starting point for philosophical perspectives on the general issues. Dahlia Lithwick comments on Slate. Linda Greenhouse of the NY Times on the Oral Argument. 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 here. University of Michican's resource page. President Bush's remarks on the cases. A post from the Volokh Conspiracy on viewpoint diversity & the cases. Bibliography from the Stanford Encyclopedia entry:
Sunday, June 22, 2003
Blogging from Montreal: Part 2 It is a warm day in a beautiful city, but I am two floors below ground in the Sheraton at the open meeting of the GAC (Government Advisory Council) with the Board of Directors of ICANN. Vint Cert has introduced Paul Twomey. This is Twomey's first meeting as ICANN's President, although he has been involved since the very beginning of ICANN's formation. I am immediately struck by the difference in tone and style between Twomey and his predecessor Stuart Lynn. Twomey is much more focused on the management of ICANN--on what staff, resources, communications, and participation is required to make ICANN actually work. Twomey then turned his attention to substance, including for example, the "WIPO II" recommendationsand IDN ("Internationalized Domain Name") implementation. Twomey then turns to more controversial topics--the creation of new generic Top Level Domains (gTLDs) and the so-called "At Large" process. The most "controversial" issue was WIPO II. I'll have more to say about this tomorrow. The final item on the agenda was the Evolution and Reform Committee Chair, Alejandro Pisanty's report about the country code Name Support Organization (ccNSO). It has been difficult for ICANN to get the ccNSO's to participate in the ICANN process. From an outsiders point of view, this is both completely understandable but also somewhat comic. At one level, the managers of the ccTLDs (like .uk (United Kingdom) or .fr (France)), seem to believe that they ought to be able to dictate the terms upon which they will recieve root service. If ICANN had been organized as a for-profit enterprise, the economic absurdity of this position would be crystal clear. On another level, it is completely understandable that the managers of ccTLDs would be outraged when something that was given away for free (root service), suddenly has a price tag attached to it. Update: Check out Michael Froomkin,who adds the proper dose of cynical acid to my softball post. Guide to Blogging from Montreal Posts. Downward Spirals Department: Politicization and Collegiality on the Sixth Circuit The Cincinatti Enquirer has a story entitled Political divide sparks disorder in the courts. Here is a snippet:
Smith on Barnette You really should download Steve Smith's Barnette's Big Blunder. Here is is the big blunder:
Blogging from Montreal: Part 1 This week I will be blogging from the ICANN meeting in Montreal. Among the issues that I will be discussing are:
--The relationship between ICANN and the managers of the country code Top Level Domains (ccTLDs). --The role of democratic mechanisms in Internet governance. --Root expansion and the sponsored Top Level Domain plan. Guide to Blogging from Montreal Posts. Saturday, June 21, 2003
Confirmation Wars: Bits and Pieces All of this courtesy of How Appealing and Election Law Blog:
--The New York Times reports "John Kerry said yesterday that he would filibuster any Supreme Court nominee who opposes the legality of abortion or would "turn back the clock" on civil liberties, the environment and worker protection." --Also on the Times, Linda Greenhouse has a piece that reports the following:
The Downward Spiral of Politicization I've been arguing that the confirmation wars are evidence that the selection process for federal judges is in a downward spiral of politicization. Where is the bottom? I've tried to argue that after a death sprial, the bench would be in a very sorry state. With that in mind, take a look at this post by Rick Hasen. Rappaport and McGinnis on Legislative Entrenchment Michael Rappaport (San Diego) and John McGinnis (Northwestern University) have posted Symmetric Entrenchment: A Constitutional and Normative Theory (forthcoming in the Virginia Law Review) on SSRN. Rappaport and McGinnis have authored a series of important papers on the role of supermajoritarian mechanisms in constitutional law and theory. In this paper, they investigate legislative entrenchment--the attempt by one session of a legislature to insulate its products from repeal or revision by its temporal successors. If you are interested in constitutional law, you will want to download this important paper:
Rodriguez and Weingast: PPT & Legislative History Daniel Rodriguez (San Diego) and Barry Weingast (Stanford, Hoover Institution) have posted their papere, The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation (forthcoming in the University of Pennsylvania Law Review) on SSRN. From the abstract:
New Papers on the Net Here is the roundup:
Popular Sovereignty Work by Bruce Ackerman, Akhil Amar, and others has made the notion of popular sovereignty central to contemporary constitutional theory. But does the notion of "We the People" make sense as a normative idea? Glen Staszewski (Michigan State University - Detroit College of Law) has posted Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy (forthcoming in the Vanderbilt Law Review) on SSRN. Here is the abstract:
Gardner reviews Nagel John Gardner (Oxford) reviews Thomas Nagel's Concealment and Exposure in the Notre Dame Philosophical Reviews. Here is a taste:
Friday, June 20, 2003
Lessig on Layers Larry Lessig posts re The Layers Principle: Internet Arhictecture and the Law, "Lawrence Solum and Minn Chung have a comprehensive and powerful view of layers in network architecture, nicely linking that architecture to policy implications, in particular, how governments regulate." And thank you to B2FXXX and Stephen's Web for the links to our download page on SSRN. More thank yous are due to GrepLaw and ICANN Watch. If you missed it, check out Ed Felten's (Princeton, Computer Science) post entitled Layers on his blog Freedom to Tinker. Also: It's the Architecture, Stupid and It's the Architecture, Stupid--Part II on Copyfight (Donna Wentworth) and this post on A Copyfighter's Musings and this post on Pressepapiers.net. Ideas, Intellectuals and the Public Today, tomorrow, and the next day, at Goodenough College, London. The Institute for Ideas is putting on Ideas, Intellectuals and the Public. Here is a description:
Thursday, June 19, 2003
Brett Kavanaugh CBS reports:
No Longer Bloggered It appears that the severe problems with Blogger--the back end of Blogspot--have been resolved. Because of the Blogger problems, I had been displaying only the last 30 posts (4-6 days worth) on the main page. As of today, I have reset the display option to 8 days. I hope that this change is more convenient for those who surf here once a week or so. Unpublished Dispositions and Stare Decisis For an nice discussion of the stare decisis effect of unpublished decisions, see Crescat Sententia. Smith on Barnette
This article first explains why the "no prescription" prohibition could not possibly be taken at face value. The article then considers the various ways in which courts and scholars have tried to qualify or reinterpret that prohibition (such as by limiting the prohibition to religion), and it argues that these efforts do not succeed in avoiding the decisive objections to a "no prescribed orthodoxy" principle. Our constitutional discourse would be more honest and cogent, the article concludes, if Barnette's "no prescription" principle were excised "root and branch."
--"orthodox." The adjective "orthodox" is from the Greek orth- + doxa opinion. The relevant meaning is "conforming to established doctrine especially in religion." --"politics, nationalism, religion, or other matters of opinion." The key here is the phrase "other matters of opinion," indicating that it is "opinion" about politics, nationalism, religion, and similar matters" that is at stake. Distinguishing Belief, Action on Belief, and Prescription of Orthodoxy Most reasonably construed, the idea is that a public official would set forth a belief about a matter of opinion (such as religion, nationalism, or politics) as an established doctrine laid down as a rule or guide for the belief of citizens. Importantly, we must distinguish the act of establish an orthodoxy as a guide for the belief of others from other belief-involving acts by public officials. Thus:
3. Prohibition of an action is not the same as establishing the belief that the action is wrong as an orthodoxy. At this point, the reason for 3 should be clear. Three is just a special case of two. Prohibition of an action may well be based on a belief that the action is wrong. But as we established in 1, having a belief is not the same as establishing a belief as an orthodoxy. Nor does acting on a belief transform the having of the belief into the establishment of an orthodoxy: this is the point we established in 2. 4. The prohibition of official establishment of orthodoxy in matters of opinion is not the same as establishing the belief that orthodoxy is morally wrong. It is clear that 4 is just a special case of 3. When the Supreme Court says that no official may establish an orthodoxy in matters of belief, this is not the same as a establishing the belief that establishing an orthodoxy of belief in matters of opinion is wrong as an orthodox belief. Citizens and public officials are free to disagree with the Supreme Court about this matter. They are not legally entitled to act so as to establish an orthodoxy of belief, but they are free to believe that is morally permissible or obligatory to do so. Smith's Slide from "Constitutional Orthodoxy" to "Orthodoxy of Belief" So when Smith argues "Barnette flatly declares these “pro-prescription” beliefs to be not orthodox-- not “right opinion”-- and it declares the contrary view to be the constitutional orthodoxy," his argument rests on a false equation between "constitutional orthodoxy"--the stare decisis effect of a Supreme Court opinion as a matter of law--and "prescribing an orthodoxy on matters of opinion"--the establishment of an official belief as a standard which citizens should adopt to guide their own beliefs. Explicity and Implict Prescription Smith's makes much of a distinction between explicit and implicit prescriptions--arguing that that the public officials explicitly endores beliefs (e.g. the Declaration of Independence and Gettysburg address). But this argument is still wide of the mark. What Smith needs is an argument that public officials should prescribe orthodoxy of belief in matters of opinion. This is very important. Saying, I believe that P and you should believe that P is not the same as prescribing an orthodoxy that P. Let me repeat that. If I say, I believe that abortion is wrong and you should believe that abortion is wrong, I have not prescribed an orthodoxy of belief that abortion is wrong. Whenever we engage in assertoric speech acts, whenever we assert that P, we ask others to accept our assertions. But asserting is not the same as prescribing an orthodoxy. Prescribing an orthodoxy requires more. Prescription requires authority, and hence only those with authority can engage in the speech act of prescribing an orthodoxy. And the speech act of prescribing an orthodoxy necessarily involves more than assertion or persuasion; it involves the establishment of a doctrine. Here is an example that illustrates my point:
Conclusion I am far from convinced by Smith's critique of Barnette, but I haven't come near to doing justice to Smith's paper, which offers a rich and original palette of arguments. Moreover, I absolutely agree with what I take it is Smith's central normative thesis: government and public officials may explicitly or implicitly affirm or reject beliefs on matters of opinion. My point is very modest: Barnette says nothing to the contrary. Download it while its hot. Rational Commitment?: A Paper by Chapman and a bit on John Broome Bruce Chapman (Toronto) has posted a working paper entitled Rational Commitment and Legal Reason on SSRN. Here is the abstract:
In this paper I argue that what economic theory needs to resolve the problem of rational commitment is an account of rationality that is so structured that it can simultaneously comprehend both the preference maximizing rationality of adopting a commitment and the more formal (less substantive, less preference-based) rationality of carrying out the commitment once it has been made. The difficulty, of course, is that a rationality that is too formal, or rigid, in its adherence to the planned commitment ceases to look rational at all. Indeed, it appears to look more like "blind commitment" or mere "mechanical habit," the sort of thing that takes the agent beyond the state of reflection or deliberation that is characteristic of rational behavior. However, I argue in my paper that the required rational structure is to be found in some recent work by John Broome and, more particularly, in the sharp conceptual difference that Broome makes between action in accordance with reasons and action according to the normative requirements of practical rationality. Broome shows that it is a common mistake to think that all of rational behavior is action according to (undefeated) reasons and that this ignores the more formal constraints that fall under the normative requirements of practical rationality. I argue that the economic theory of rational choice falls prey to this same confusion (where reasons, whatever their basis, are ultimately thought to give rise to a preference for doing x rather than y, and rational choice consists in following that preference), something that serves to undermine the possibility of keeping to commitments rationally made. However, if there is more to rationality than acting for reasons, as Broome suggests with his account of normative requirements, then it is possible to be rational even as one acts contrary to reason in some particular case. In my paper I show the importance of this argument for the economic problem of rational commitment in general, and for the problem of credible threats and promises more particularly. Lest this argument be thought of theoretical interest only, I also show that the more robust model of rational commitment that is made possible by the idea of normative requirements of practical rationality should be familiar to legal theorists. For it is an idea manifested constantly in common law decision-making, where defeasible legal rules, apparently simultaneously, both determine cases (as a matter of normative requirement) and are determined by them (as a matter of reason). Thus, the logical distinction between reasons and the normative requirements of practical rationality can be used both to prescribe a solution for a problem in rational choice, namely, the problem of rational commitment, and to provide understanding for what is rational in legal reason and the method of common law adjudication. New Papers on the Net Here is the roundup:
Hasen on "The Recall" The Governor of California, Gray Davis, is the subject of a recall campaign. My Loyola colleague Rick Hasen sorts out the complexities in this op/ed. Workshop Today At Florida State's excellent summer series, Paul Caron, University of Cincinnati (visiting at FSU College of Law) does Cultivating an Active Learning Environment in the Classroom. Watt Reviews Kekes On Notre Dame Philosophical Reviews, John Watt has a review of John Kekes, The Art of Life, published last year by Cornell University Press. Here is a taste:
Wednesday, June 18, 2003
Felten on the Layers Principle Ed Felten (Princeton, Computer Science) comments on The Layers Principle: Internet Architecture and the Law, a working paper authored by Minn Chung and me, in a post entitled Layers on his blog Freedom to Tinker. And see It's the Architecture, Stupid and It's the Architecture, Stupid--Part II on Copyfight (Donna Wentworth). And also this post on A Copyfighter's Musings. And also this post on Pressepapiers.net. Helfer in the New York Times Check out my Loyola colleague Larry Helfer's editorial in the New York Times: Not Leading the World but Following It. Hasen on the Confirmation Wars Rick Hasen and I have a running debate about the confirmation wars. I maintain we are in a downward spiral of politicitization, while Rick argues that it is business as usual (albeit with roller-coaster like fluctuations). Rick posts today with some evidence that supports the downward spiral hypothesis. (Thanks!) Political Science Book Reviews Check out short reviews in the Washington Post by Kimberly Phillips-Fein. On the table:
Ian Shapiro, The Moral Foundations of Politics. Ann Florini, The Coming Democracy: New Rules for Running a New World. James MacGregor Burns, Transforming Leadership. Friedman on Rawls and Nozick Over at the dissident, Jeffrey Friedman has an interesting piece titled Theory Gets a Reality Check: Philosophy, Economics, and Politics as if Verisimilitude Mattered. Take this with a grain of salt. Friedman makes a number of dubious assumptions, but it is still fun reading. Friedman makes a point that is often missed on the right--Rawls's basic theoretical framework can easily be given a heavily libertarian/pro-market interpretation. Marston on the Role of Parties in the Confirmation Wars Brett Marston has an excellent post. Here is a taste:
Claus on the Ninth Laurence Claus (San Diego) has posted Protecting Rights from Rights: Enumeration, Disparagement, and the Ninth Amendment on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Both proposals mark a shift in the scholarship addressing the problem of gatekeeper liability. Until recently, scholarship on gatekeepers had focused on reputation - not regulation or civil liability - as the key limitation on gatekeeper behavior. Indeed, many scholars have argued that liability should not be imposed on gatekeepers in various contexts, and that reputation-related incentives alone would lead gatekeepers to screen against fraudulent transactions and improper disclosure in an optimal way, even in the absence of liability. From a theoretical perspective, this article is an attempt to move the literature away from a focus on reputation to an assessment of a potential reinsurance market for securities risks, where gatekeepers would behave more like insurers than reputational intermediaries.
The terms of this tradeoff are determined by the origami of judicial doctrines that describe the fiduciary obligations of a controlling shareholder. In this article, we examine the doctrinal limits on the private benefits of control from a particular orientation. A controlling shareholder may extract private benefits of control in one of three ways: by taking a disproportionate amount of the corporation's ongoing earnings; by freezing out the minority; or by selling control. Our thesis is that the limits on these three methods of extraction must be symmetrical because they are in substantial respects substitutes. We then consider a series of recent Delaware Chancery Court decisions that we argue point in inconsistent directions: on the one hand reducing the extent to which a controlling shareholder can extract private benefits through selling control, and on the other increasing the extent to which private benefits can be extracted through freezing out non-controlling shareholders. While judicial doctrine is too coarse a tool to specify the perfect level of private benefits, we believe these cases get it backwards - the potential for efficiency gains are greater from sale of control than from freeze outs, so that a shift that favors freeze outs as opposed to sales of control is a move in the wrong direction. In particular we argue that the Delaware law of freeze outs can be best reunified by giving "business judgment rule" protection to a transaction that is approved by a genuinely independent special committee that has the power to "say no" to a freeze out merger, while also preserving what amounts to a class-based appraisal remedy for transactions that proceed by freeze out tender offer without a special committee approval.
This Article discusses aspects of neoclassical economics with which some heterodox approaches (within the LSOC umbrella) disagree. Particular attention is given to traditional institutional economics (hereinafter "institutional economics") which differs on many dimensions from neoclassical economics. Part I of this Article gives an overview of the LSOC approach mainly from an institutional economic perspective and compares this LSOC approach with neoclassical economics in terms of their views of markets and economics as a discipline. Part II is devoted to LSOC and human behavior and provides an overview of the different methodologies and perceptions of human behavior utilized in neoclassical economics and LSOC. Part III gives examples of two LSOC approaches drawing on institutional and feminist economics.
A recent meta-analysis has found that both insider-dominated boards and outsider-dominated boards are associated with more successful corporations in terms of return on assets. In this paper, I explore a number of alternative explanations for these findings. I offer an interpretation that is based on the multiple conflicting roles of corporate boards. I argue that insider-dominated board perform some roles more effectively than outsider-dominated boards, particularly strategic management. I argue that the advantages of the insider-dominated board in strategic management comes from the advantages of group decision making by peers (fellow executives) which decreases corporate politics and the chance of a dominant CEO becoming convinced of his invincibility. In addition, the quality of decision making is enhanced in ambiguous and uncertain situations when diverse perspectives are shared and this sharing is encouraged when persons are in similar social positions. Outsider-dominated boards perform other functions better than insider-dominated boards, such as manager-monitoring functions, to the extent that the outside directors are truly independent of management. This analysis suggests a number of reforms for corporate boards that will enable them to perform their multiple functions more effectively.
The article also discusses alternatives to the criminalization of escape that would assure the public's safety while avoiding constitutional challenges. Criminalization of escape by mental patients may be an unnecessary, and unwise, policy judgment if the risk of escape can minimized through enhanced security measures to prevent escape, treatment opportunities that offer patients the prospect of release, and clarification of authority to apprehend and return patients if escape does occur. Nevertheless, the article concludes by questioning whether public pressure to confine, and if possible, punish specially civilly committed patients will preclude use of these rational alternatives to criminalization of patient escape.
In this review essay, Stearns considers three complementary methodologies for analyzing appellate courts that yield insights of particular interest to lawyers and legal scholars. Such questions include how appellate courts transform preferences into doctrine; the nature of cases that are likely susceptible to further appellate process through en banc, mini-en banc, or Supreme Court review; and how best to evaluate appellate court opinions. While organizational theory provides a useful starting point, Stearns contends that insights drawn from other methodologies, including economics (demonstrating how decentralized informational processes can provide more meaningful data), probability analysis (demonstrating the quality of data drawn from subsets of a larger group), and social choice (demonstrating the nature and limits of group decision making), might prove more fruitful in evaluating at least some of these questions. Stearns concludes that a comprehensive understanding of federal appellate judging requires not only an understanding of the circuit courts' internal organizational structure, but also an analysis of the edifice of circuit court decision making from inside and out. White at Oxford on Self-Development Today at Oxford's Research Seminar in Political Theory, Stuart White (Oxford) presents Self-Development as a Political Ethic. Tuesday, June 17, 2003
Self Help for Copyright Owners & the Global State of Nature Courtesy of the ever-interesting Chris Bertram of Junius, I was intrigued by Michael LaBossiere's discussion of the Berman bill, authorizing self-help by copyright owners against those who distribute pirated electronic copies of copyrighted works. Here is an excerpt:
Bork on the Alien Torts Claims Act Courtesy of How Appealing, Robert Bork has an op/ed on the Alien Torts Claims Act in the Wall Street Journal. Here is a taste:
How did we get to this state of affairs? Many American courts claim authority from the little-known Alien Tort Act (ATA): "The district courts shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States." Early in my time on the federal appellate bench, I sat on a three-judge panel that heard Tel-Oren v. Libyan Arab Republic (1984), involving Israelis' claims against the P.L.O., Libya and others for a murderous attack launched in Israel. It seemed preposterous that we should decide the legality of an assault by foreigners against foreigners on foreign soil. My first thought was that the statute must be a modern excrescence. To my chagrin, it turned out to have been part of the first Judiciary Act of 1789. New Papers on the Net Here is today's roundup:
Robert Lipkin (Widener) uploads Reconstructing the Public Square, forthcoming in the Cardozo Law Review. For the abstract see my post below. Holmes on Antidiscrimination and Equality at Oxford At Oxford's Jurisprudence Discussion Group, Elisa Holmes presents Anti-discrimination Rights without Equality. Monday, June 16, 2003
Solum and Chung on Internet Architecture and the Law Minn Chung and I have posted The Layers Principle: Internet Architecture and the Law on SSRN. Here is the abstract:
The layers principle is supported by two fundamental ideas. The first idea is transparency: the fact that layer violating regulations damage transparency combined with the fact that Internet transparency lowers the cost of innovation provides compelling support for the principle of layer separation: public Internet regulators should not violate or compromise the separation between layers designed into the basic architecture of the Internet. The second idea is fit: the fact that layer-crossing regulations result in inherent mismatch between the ends such regulations seek to promote and the means employed implies that layer-crossing regulations suffer from problems of overbreadth and underinclusion; avoidance of these problems requires Internet regulators to minimize the distance between the layer at which the law aims to produce an effect and the layer directly targeted by legal regulation. Finally, the essay provides a detailed discussion of several real or hypothetical layer-violating or layer-crossing regulations, including: (1) The Serbian internet interdiction myth, (2) Myanmar's cut-the-wire policy, (3) China's great firewall, (4) the French Yahoo case, (5) cyber-terrorism, (6) Pennsylvania's IP address-blocking child-pornography statute, (7) port blocking and peer-to-peer file sharing, and (8) the regulation of streaming video at the IP layer. Filibuster Debate Check out the latest posts by the Curmudgeonly Clerk and Will Baude on the filibuster of judicial nominees. Hasen on Beaumont Rick Hasen explains why the Supreme Court's opinion today in Federal Election Commission v. Beaumont bodes well for the soft money provisions of McCain-Feingold on his Election Law Blog. New Papers on the Net Here is the roundup:
Balkin on Ideological Judicial Appointments Responding to Matthew Yglesias, Jack Balkin defends ideological judicial appointments in a post entitled Judicial Appointments and Good Faith: Some Notes About Constitutional Change. Here is a snippet:
Public Reason
Lipkin on the Public Square Robert Justin Lipkin has posted a paper entitled Reconstructing the Public Square to SSRN. Here is the abstract:
This Article attempts to formulate a principled compromise between these two factions by replacing the distinction between the religious and the secular with the novel distinction between the dedicated and the deliberative. Dedicated arguments and reasons - including both religious and secular ones - insist on a canonical and fixed language and form of reasoning for discussing public policy. By contrast deliberative arguments and reasons - including both religious and secular ones - insist on a tentative, pragmatic, fallibilistic language and form of reasoning with which to conduct democratic debate. This Article then suggests that democracy in the public square is best understood as committed to the thesis that dedicated arguments be "reconstructed" into deliberative ones, and that all deliberative argumentsc - whether religious or secular- play an equal role in justifying coercive laws in democratic societies. The Article then evaluates an important objection to the Reconstruction Thesis, which helps to better illuminate the Thesis's rationale. The Article concludes with a conception of complex democracy, which is presupposed by the Reconstruction Thesis and enables us to see its plausibility and attractiveness.
Maclean on Procedural Virtue Today at Oxford's Moral Philosophy Seminar, Douglas Maclean (North Carolina at Chapel Hill, Philosophy) presents Procedural Virtue. Sunday, June 15, 2003
Review of Tushnet Mark Kessler (Bates) reviews Mark Tushnet's The New Constitutional Order. Here is a taste:
Review of Carl Schmitt David Gordon has a review of Karl Schmitt's The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Courtesy of Political Theory Daily Review. Here is a taste:
More on Mediocrity My post on friday (The Aretaic Turn) contributes to a minor blogospheric eruption promted by Matthew Yglesias's suggestion that we might prefer mediocre judges to brilliant ones and Jack Balkin's reply to Yglesias. This is fun stuff and there is more from Juan Nonvolokh and Yglesias. Update: And more from Law Muse and the Epistemopolitan and Green Gourd and Unlearned Hand. Saturday, June 14, 2003
Howard Chang on Immigation and Distributive Justice Howard Chang (Pennsylvania) posts The Immigration Paradox: Poverty, Distributive Justice, and Liberal Egalitarianism, forthcoming in the DePaul Law Review. From the abstract:
New Papers on the Net Here is the roundup:
Friday, June 13, 2003
The Aretaic Turn The ever acute Jack Balkin answers the always intelligent Matthew Yglesias's argument for mediocrity on the federal bench. Here is a bit of Yglesias's post:
Certainly I wouldn't want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn't demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we're looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.
Yglesias is right. Read charitably, the real point of Yglesias's post is not that judges don't need to be smart, but that they don't need to be brilliant. And here Yglesias's post calls to mind the connection between our understanding of "brilliance" or "genius" and creativity. And there is a sense in which we do not want judges to be creative. Why not? Because we want them to display the virtue of justice, which Aristotle understood as fidelity to law. (Let me put his view of equity to the side for the moment.) The virtue of justice requires decision according to the law as it is and not according to the judge's conception of the law as it should be--no matter how brilliant that conception might be. Fair Use and the Constitution Orin Kerr (author of the must download Cybercrime's Scope: Interpreting 'Access' and 'Authorization' in Computer Misuse Statutes) has a typically thoughtful post on the Conspiracy on the question whether there is a constitutional defect in the DMCA because it lacks a fair use exception. Kerr says no. Here is his reason:
Second, it is true that the “fair use” defense is bound up with copyright law. (It is, after all, in the statute.) There are similar doctrines that are all called “fair use,” i.e., trademark fair use, but these are not the same legal doctrine. So Kerr is right—the fair use affirmative defense is bound up with the copyright legal theory (claim or cause of action).
First, although Kerr says that it “may be” that the freedom of speech requires a fair use doctrine, there is substantial support for the proposition that the freedom of speech does require a fair use doctrine. See, e.g., Eldred. Second, Kerr says that if fair use is constitutionally required, “this does not necessarily mean that [the freedom of speech] invalidates any other law . . . that would constitute (or at least lead to) protected fair use.” Kerr has used the idea of necessity, introducing an important ambiguity in his claim. We need to think this through step by step to understand Kerr’s argument.
+ What we really need to know are the answers to questions like the following:
# Does that rationale extend to the DMCA? + But our terrorist hypothetical has very little to tell us about the question whether the freedom of speech requires a fair use exception to the DMCA. Why not? Because the purpose and function of the DMCA is closely aligned to the purpose and function of the Copyright Act. Indeed, the anti-circumvention provisions of the DMCA are aimed at protecting copyrights. The argument that the freedom of speech requires some accommodation of fair use under the DMCA is based on the relationship between the function and purpose of the DMCA and the function and purpose of the copyright acts. New Papers on the Net Here is the roundup:
Thursday, June 12, 2003
Posner for Chief Jack Balkin endorses Richard Posner for Chief Justice in a post on Balkinization. No one is more deserving. Baude on Judicial Self-Selection Will Baude (Crescat Sententia) has a very nice post on the relationship between a prospective judge's jurisprudence and motivation to pursue a judicial career. Must Read . . . is the only way to describe Howard Bashman's column U.S. Supreme Court Vacancies On The Horizon: What To Expect This Summer If One Or Two Vacancies Arise On The Court. Bernard Williams I am sad to report the death of the eminent philosopher Bernard Williams, long associated with Cambridge, Berkeley, and Oxford. I regret that I saw Williams speak only once, at a meeting of the American Philosophical Association, where he did an author meets critics session with the late Warren Quinn. The topic was Williams's Ethics and the Limits of Philosophy. Here is a brief biography from his home page:
Update: For more, see Chris Bertram's Junius. Also, Jacob Levy on the conspiracy. The Filibuster and Alberto Gonzales Rick has a must read post entitled Rationality of party filibuster strategies, continued, and the Democrats' Apparent Success in Blocking Estrada. Rick's thesis is that the Democratic filibuster of Owen and Estrada has succeeded strategically by moving the Bush administration away from either Owen or Estrada as a Supreme Court nominee and improving the chances of Alberto Gonzales. Rick quotes from a Washington Times story that includes the following:
Also on the list are Washington lawyer Miguel Estrada and Texas Supreme Court Justice Priscilla Owen. But in recent weeks, Republican insiders have said Mr. Estrada and Justice Owen are unlikely as contenders because both of their nominations to lower federal courts are being filibustered by Democrats.
Oman on Historical Explanations of Law Nate Oman responds to Brian Leiter and to me. The issue: are historians guilty of intellectual sloppiness when their are dismissive of the causal role of legal doctrines and ideas in the production of legal events? Harm Facilitating Speech Does the freedom of speech encompass a manual for bomb making? Check out Eugene Volokh's post on the Conspiracy. Rubin on Retribution I have been thinking quite a lot about retribution recently, so I was very pleased this morning, when I discovered that Edward Rubin (Pennsylvania) has just posted Just Say No to Retribution on SSRN. Rubin is smart, interesting, and comes from an intellectual space that is quite different from my own. So I read the paper with great interest. You should read the full paper, but here is the abstract, followed by some comments:
Katz on Compensation Leo Katz (Pennsylvania) has uploaded What to Compensate? Some Surprisingly Unappreciated Reasons Why the Problem is So Hard to SSRN.
McCaffery and Baron on Framing and Taxation Edward McCaffery (Southern Cal, Law) and Jonathan Baron (Southern Cal, Psychology) have posted Framing and Taxation: Evaluation of Tax Policies Involving Household Composition. McCaffery is one of the most interesting legal theorists working in tax. Here is the abstract of their paper:
The research suggests a general framework. Subjects approach a given decision problem with strong independent norms or ideals, such as, here, "do no harm," "avoid penalties," "treat likes alike," "help children," and "expect the rich to pay more." They then evaluate the problem on the basis of the most salient norms. In a complex area such as tax, independently attractive ideals are often in conflict, and the result is shifting, inconsistent preferences. New Papers on the Net Here is the roundup:
Ian Ward (University of Newcastle upon Tyne) posts A Decade of Europe? Some Reflections on an Aspiration, forthcoming in the Journal of Law and Society. Richard H Steinberg (UCLA) and Timothy Josling (Stanford, The European Forum, Institute for International Studies) upload When the Peace Ends: The Vulnerability of EC and US Agricultural Subsidies to WTO Legal Challenge, forthcoming in the Journal of International Economic Law. Lucas Bergkamp (Hunton & Williams, Brussels) offers European Community Law for the New Economy. Crossley at FSU on the ADA At Florida State today, Mary Crossley does an internal workshop entitled Evenhanded Inequality: Reclaiming the Civil Rights Foundations of the ADA. Wednesday, June 11, 2003
Leiter on Microfoundations and Functionalist Causation in Law Brian Leiter writes in response to my offhand remarks on the role of microfoundations in historical explanations of legal change:
To sum up points 1 and 2, here's what I wrote in the Stanford Law Review in the May 2002 issue:
The answer, in a nutshell, is that functional explanations, if they are real explanations, have to be reducible to or shorthands for ordinary causal explanations (X was caused by Y, and Y preceded X in time). When we say the sucking reflex in infants is explained by the contribution it makes to the survival of newborns, what we really mean is that the reason the sucking reflex came to predominate in the population of infants is that, in the past, those infants with the genetic predisposition for the sucking reflex survived and went on to reproduce at much higher rates than those lacking that genetic predisposition. So a genetic predisposition towards sucking causes survival, which over time and populations, causes most infants to end up having that genetic predisposition. Class struggle must play the same role with respect to Cohen’s functionalist version of historical materialism: The reason relations of production favorable to the maximal development of the forces of production come into being is because classes that can effectively exploit the forces of production try to bring such relations about. Here is how Peter Railton put the point many years ago:
As in the biological case, one can give a “fitness”-invoking [or functionalist] gloss on this process: a dominant class that cannot achieve efficient exploitation of the possibilities inherent in the existing state of productive forces will tend to be replaced by a class that can, and, in the process, social relations as a whole will be reshaped to reflect the mode of existence of this more efficient class." Report from Mongolia Andrew McLaughlin (of the Berkman Center at Harvard) is doing a Slate diary from Mongolia. Here is his description of the why of his visit:
Confirmation Wars: Financing Check out this post by Rick Hasen on the $5.5 million warchest, banked for opposition to Bush Supreme Court nominees. (Rick, doesn't this provide some evidence of a downward spiral?) Benjamin's Critique of a Spectrum Commons Stuart Benjamin has posted Spectrum Abundance and the Choice Between Private and Public Control on SSRN. This paper attacks the spectrum-commons position (associated with Larry Lessig and Jochai Benkler). Here is the abstract:
Those advocating a commons do not propose a network in which anyone can transmit as she pleases. The abundant networks they envision involve significant control over the devices that will be allowed to transmit. On the question whether private entities will create these abundant networks, commons advocates emphasize the transaction costs of aggregating spectrum, but those costs can be avoided via allotment of spectrum in large swaths. The comparative question of the efficiency of private versus public control, meanwhile, entails an evaluation of the implications of the profit motive (enhanced ability and desire to devise the best networks, but also the desire to attain monopoly power) versus properties of government action (the avoidance of private monopoly, but also a cumbersome process than can be subject to rent-seeking). The deciding factor, in my view, is that these networks might not develop as planned, and so the flexibility entailed by private ownership - as well as the shifting of the risk of failure from taxpayers to shareholders - makes private ownership the better option. The unattractiveness of a commons in this context casts serious doubt on the desirability of commons more generally. Commons proponents have championed abundant networks because those networks avoid interference problems. If private ownership is a more efficient means of creating abundant networks, then the same would almost certainly be true for networks that run the risk of interference. Most uses of spectrum are subject to interference, so the failure of the commons advocates' arguments undermines the appeal of a commons for most potential uses of spectrum. Legal Theory? Kenney Hegland has posted If Stephen King Discovers Cujo, Can Judges Discover Law? (forthcoming in the Legal Studies Forum) on SSRN. Here is a taste:
New Papers on the Net Here is today's roundup:
Marco Battaglini uploads Long-Term Contracting with Markovian Consumers. Joan Esteban and Laurence Kranich offer Redistributive Taxation with Endogenous Sentiments. Robert McCarthy posts a Review of James R. Otteson's Adam Smith’s Marketplace of Life on the Notre Dame Philosophical Reviews, courtesy of Online Papers in Philosophy. Here is a taste:
Language and Evolution New Scientist has a nice series on the human mind. I particularly liked Steven Mithen's Thoroughly Mobile Minds. Here is a taste:
Tuesday, June 10, 2003
Law versus History Nate Oman describes his experience presenting a paper on natural law and legal positivism in the nineteenth century at a history conference. The historians, of course, thought that legal ideas were causally impotent. Here is the thing I find odd. Historians toss off sweeping generalizations about the nature of historical causation--even though their methods have little to teach us about the causes of legal events. When thinking about this issue, I always come back to the famous debate between Jon Elster and Gerald Cohen over Marxist theories of history. From where I sit, Elster won this debate decisively. Without microfoundations, Marxist theories of history are close to mere dogma. But Historians believe they can explain legal events, like Supreme Court decisions, with absolutely no account of causal mechanism at all. This sort of sloppy thinking is really quite astounding. Read Nate's post, which is eloquent and thoughtful. Update:For some thoughtful comments by Bruce Boyden, check out this post in the Legal Theory Annex. Pryor Filibuster Check on this post at Southern Appeal that reports on the state of play with respect to a possible filibuster of Bill Pryor. New Papers on the Net Here is the roundup:
Rebellious Judges Joanne Mariner has a very nice findlaw column on vertical stare decisis. Here is a taste:
Confirmation Wars: The Fortas Filibuster C. Boyden Gray has a piece in the Wall Stree Journal entitled A Filibuster Without Precedent. Gray has a very good analysis of the Fortas filibuster and what it means for the question whether there the traditions of the Senate encompass filibusters of judicial nominees. Here is a taste:
Bernstein on Lochner Check out this post by David Bernstein, challenging the assumption that Lochner era jurisprudence was partisan. Viens at Oxford Today At Oxford's Jurisprudence Discussion Group, Adrian Viens presents Juridical Bivalence. Law and Philosophy at the University of Texas Brian Leiter has announced next year's lineup at the spectacular Texas series. Here is the link. Next year's speakers include:
Liam Murphy, Professor of Law and Philosophy at New York University. Nicos Stavropoulos, University Lecturer in Legal Theory at Oxford University. Benjamin Zipursky, Professor of Law at Fordham University in New York. Mark Murphy, Associate Professor of Philosophy at Georgetown University. Jonathan Wolff, Professor of Philosophy and Head of Department at University College London. Monday, June 09, 2003
Hiring This article is about the Economics Department at NYU, but it includes a description of NYU President (and former Law School Dean) John Sexton's famous and infamous hiring techniques. Worth a read. Prospect Theory and Behavioral Economics Courtesy of the marvelous PoliticalTheory.info, Dirk Olin has a very nice (and short) piece in the NYT titled Prospect Theory. Here is a morsel:
Welcome to the Blogosphere Please welcome Three Years of Hell to Become the Devil: A law student at Columbia University to the Blogosphere. This is (you guessed it) a law student blog--and it is very nicely executed with Moveable Type. Behavioral Economics and Tax Surf to A Taxing Blog and check out the plug for Terry Chorvat's paper Perception and Income: The Behavioral Economics of the Realization Doctrine, which recently went up on SSRN. New Papers on the Net Here is the roundup:
Despite the reservations noted above, Constituting Workers, Protecting Women is recommended for readers interested in constitutional, labor, and women's history. While it does not deliver everything the author promises, or that this reviewer would have liked to have seen, it is a cogent account of an important legal and historical controversy. The definitive book on protective labor legislation and women during the Lochner era, however, remains to be written.
Marston on the Constitutionality of the Filibuster Brett Marston has a nice post on the constitutionality of filibustering judicial nominees. Wolf on the Meanings of Lives Today at Oxford's Moral Philosophy Seminar, Astor Visiting Lecturer, Susan Wolf (North Carolina at Chapel Hill, Philosophy) presents The Meanings of Lives. Here is a taste of her very nice paper:
For me, the idea of a meaningless life is most clearly and effectively embodied in the image of a person who spends day after day, or night after night, in front of a television set, drinking beer and watching situation comedies. Not that I have anything against television or beer. Still the image, understood as an image of a person whose life is lived in hazy passivity, a life lived at a not unpleasant level of consciousness, but unconnected to anyone or anything, going nowhere, achieving nothing - is, I submit, as strong an image of a meaningless life as there can be. Call this case The Blob. If any life, any human life, is meaningless, the Blob's life is. But this doesn't mean that any meaningless life must be, in all important respects, like the Blob's. There are other paradigms that highlight by their absences other elements of meaningfulness.
Sunday, June 08, 2003
The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part Three: Precedent and Principle
Guide This is Part Three of a series of posts on stare decision. The prior posts are:
--horizontal stare decisis in intermediate courts of appeal, e.g. the rule that three-judges panels of the Courts of Appeals are bound by their predecessors and bind their successors. --horizontal stare decisis for courts of last resorts, i.e. the idea that the Supreme Court should consider itself bound by its own prior decisions. Framing the Issue So I have a problem. This is a blog and a really good answer to the question could easily take a long law-review article or even a book. So I need a framing device--an expository technique that will enable us to get at the heart of the question. We are investigating legal formalism--but the general concept of law as a formal system is too general and abstract. We need to compare particular conceptions of formalism. (Notice that I am appealing to the concept/conception distinction.) My strategy will be to compare two simple theories (that is, two conceptions of legal formalism) that are very similar. The first conception will incorporate strong stare decisis, both horizontal and vertical, for trial courts, intermediate appellate courts, and courts of last resort. Let's name this conception "strong stare decisis." The second conception will be like the first, but it will substitute much weaker version of stare decisis for courts of last resort. Let's name the second conception "weak stare decisis," remembering that the weakening of the force of precedent is limited to courts, like the United States Supreme Court, that stand at the top of the hierarchy in a particular jurisdiction. Let's assume that both of these conceptions share the other features of a neoformalist theory of adjudication, e.g., they both share a commitment to deciding constitutional cases in accord with the plain meaning of the text and, when that is ambiguous, to the original meaning insofar as that can be ascertained from history. For the purposes of exposition, I will use "textualism" as a shorthand for the complex structure of neoformalism. That means that I will be ignoring originalism for most of the remainder of this post. Deontological Textualism Why would a formalist favor weak stare decisis over strong stare decisis? In the first two parts of this series, I have argued for the unremarkable conclusion that strong stare decisis better serves the rule of law values of predictability and certainty. I've also shown that strong stare decisis provides a better solution to the problem of politicization. From the neoformalist perspective, it would seem like the presumption should be in favor of strong, and against weak, stare decisis. There is, however, a very powerful argument against strong stare decisis that may overcome this presumption. The argument is simple. Judges have an obligation to decide cases correctly, ruling in favor of the party that is entitled to win on the basis of the law. Thus, in constitutional cases, judges have an obligation to rule in favor of the interpretation of the constitution that fits the text. Correspondingly, in a case in which one party advocates a result that conforms to the text and the other side argues for a ruling that is inconsistent with the text, the former side is entitled to prevail. Without worrying about the deep foundations of this principle in moral philosophy or political theory, let us assume, arguendo, that this is correct. Let's call this view--that judges have a duty to decide in accord with the text--"deontological textualism." The Argument Against Stare Decisis from Deontological Textualism If deontological textualism is correct, the there is a really big fat problem with stare decisis. Here is one way of putting the problem:
Point of View But then it hits me. The argument against strong stare decisis from deontological textualism only works if we evaluate stare decisis from the first-person judicial perspective--from the point of view of the judge deciding whether to follow precedent. If we ask the question, should I consider myself bound by precedent assuming that I will otherwise make the legally correct decision and we assume (on the basis of deontological textualism) that I am obligated to make the correct decision, the assumptions dictate the answer. But now shift from the first-person judicial perspective to the third-person systemic perspective. Now we are looking at the doctrine of stare decisis from outside the courtroom and over the long run of cases. Which system is more likely to produce fidelity to text in the long run? A system of precedent or a system in which judges are free to decide for themselves in each and every case what the text means? Once we switch perspectives, the epistemological bias of the first-person judicial perspective is unveiled. From the first-person judicial perspective, the answer to the question, will I decide correctly if I am not bound by precedent is always "yes." But from the third-person perspective, it is quite clear that individual judges frequently err. The argument of the immediately preceding paragraph was, quite simply, bogus. Totally bogus, man! The Internal Inconsistency of the Case for Weak Stare Decisis from Deontological Textualism Remember that we are comparing strong and weak versions of stare decisis for courts of last resort. But I have been assuming that my opponents are not against vertical stare decisis or horizontal stare decisis as rule for intermediate appellate courts. (The explanation is in Part I of this series.) But the argument from deontological textualism applies with equal force to these applications of the doctrine of stare decisis. And this is very important. Because very few opponents of stare decisis at the level of the Supreme Court are willing to bite the bullet and say that we should do away with the rule that requires trial courts to adhere to the precedents set by appellate courts. That seems like a recipe for chaos. And it would be in the context of a common-law system. But there is an alternative available. Comparing Civil Law and Common Law from a Neoformalist Perspective Doing away with precedent in a common law system is a recipe for disaster. But there is an alternative. We could replace our common-law system with a civil-law system. In common-law systems, the doctrine of stare decisis is essentially for the rule of law. Constitutions and statues are drafted with the common law system in mind. Some bodies of law (contracts outside the UCC, torts, much of property, agency, etc.) rely almost entirely on precedent--even in states which adopted a "codification" in the late 19th century. But civil law jurisdictions do not have the doctrine of stare decisis, and nonetheless they preserve the rule of law. How? Too big a question for an adequate answer here! But, here are some basic points:
--Civil law judges are inculcated with the culture of civil-law judging; they learn civil-law techniques of reasoning and adopt civil-law norms. --Civil law codes are supplemented by quasi-authoritative extrajudicial interpretive materials, the functional equivalent of our multi-volume treatises (Wigmore, Williston, Moore's). Strong or Weak But the critic of strong stare decisis has yet another line of argument. OK. I concede that lower courts should follow precedent. I am even willing to concede that the Supreme Court should consider precedent. What I am against is the idea that precedent should be considered first and should be considered binding. Fair enough. The time has come to take a hard look at weak stare decisis. Let's rock and roll:
Versions of Weak Stare Decisis And now we need to get specific about weak stare decisis. How would nonbinding stare decisis work? Let's run through some possibilities:
--Precedent as a Factor to Be Weighed. So here is another idea. We could take precedent as simply a factor to be weighed with other factors when a court makes a decision. I am not certain that it is really open to neoformalists to adopt a balancing test model for integrating the role of precedent, text, and history. How is this supposed work? Balancing assumes a single scale. But how do you weigh precedent against text? Doesn't this involve a category mistake? Balancing tests work well if you have a neorealist, instrumentalist, interest-accommodation theory of law, but that can't be the way that balancing works for neoformalists. --Precedent as Binding in the Absence of Clear Error.. This is the most promising possibility. The Supreme Court might adopt the view that it will follow its own prior precedents in the absence of clear error. Here is one way the story could be told. Even judges who take text and history seriously can disagree about what the Constitution means. Of the alternative interpretations that could be said to fit the text, some do a better job of making sense of meaning and some do a worse job. The Supreme Court might follow those precedents that can be said to be reasonable interpretations while ignoring precedents that fail to make any attempt to fit the text or that do try but miss the mark so badly that we can say that they are clear mistakes. This proposal has much to recommend it, but it has one, very troublesome, feature. Whether a given interpretation is "reasonable" or "clearly erroneous" cannot be determined by objective criteria. These are judgment calls, and it is inevitable that there will be disagreement. Moreover, such judgment calls will inevitably be influenced by the political ideology of the judge. A clear error rule can reduce the target zone for politicization of the judiciary, but given the nature of our Constitution's broad and ambiguous provisions, the clear error rule will inevitably leave much open. And it goes without saying that this zone will not be reduced by the accumulation of precedent--because the point of a clear error rule is to prevent precedent from settling this kind of question.
Ultrarealist Precedent And if all precedents were created equal, that would be the end of the story. But not all precedents are created equal. A fully developed theory of stare decisis needs a richly detailed account of dicta and ratio decendi. But the neoformalist theory of precedent should not be confused with ultrarealist theory of precedent that holds sway in contemporary judicial practice. Let me use Miranda as an example. Miranda is an extreme example of a ultrarealist theory of precedent. Realists viewed stare decisis as an otiose and misleading way of describing the predictive theory of precedent. Precedents are important because they enable us to predict what a particular set of judges will do on future occasions. Given that judges have the freedom to either sign on to an opinion, concur separately, or dissent, we can cautiously assume that if an opinion labels a particular statement as a holding, then that statement provides a reliable guide to the likely future decisions of the court. Notice that on the ultrarealist picture, decisions of the Supreme Court (which always sits en banc) and decisions of the Courts of Appeal (which sits in three judge panels) have radically different precedential effect. A Supreme Court "holding" may be a pretty good predictor of the likely voting pattern next year--assuming that at least five judges from the majority remain on the Court. But a Court of Appeals "holding" is a lousy guide to how another three-judge panel (which in all likelihood would have zero or one judge in common with the precedent case) would vote. Thus, Supreme Court "holdings" are read by realists like they were statutes whereas Court of Appeals "holdings" are not so read by realists. This whole picture of precedent is rejected by neorealism. Thus, when I argue for strong stare decisis, I am not arguing that the Miranda dicta became law just because the Supreme Court pronounced it to be so. Of course, in the intervening years Miranda has been applied in a variety of contexts and also been subjected to a number of carve outs and exceptions. The whole corpus of Miranda decisions has come to embody something like the original Miranda rule. Strong stare decisis requires adherence to that--the corpus of decisional law--but nothing in neoformalism requires adherence to the legislative pronouncement made by the original Miranda Court. Neoformalist Precedent In contrast to the ultrarealist theory of precedent, the neoformalist view actually affords the pronouncements in individual cases ("legislative holdings") less rather than more authority. The binding authority of a single case is always quite limited in scope--only the ration decendi and not the obiter dicta is authoritative. Common law rules are established by the accumulation of precedent, and the same goes for constitutional interpretations in a common law system. And this brings us back around to the ratchet (the notion that stare decisis can lock in realist precedents. We are now in a position to appreciate a significant qualification on this claim. Neoformalist stare decisis would not "lock in" the broad legislative pronouncements characteristic of modern Supreme Court. Gravitational Force Even if we reject the ultrarealist theory of precedent, it is nonetheless the case that some precedents are more weighty than others. How does this come to be? Ronald Dworkin suggested the metaphor of gravitational force to capture this aspect of the doctrine of stare decisis. Let's grab the metaphor. Precedents acquire gravitational force in diverse manners. One common pattern involves a case that articulates a principle that stands the test of time and becomes incorporated in a body of interlocking decisions--the first case to articulate the principle comes to stand for the entire body of interrelated decisions. This point leads to another. The force of a precedent depends on the soundness of its reasoning. What does this mean? On the one hand, precedents that respect the prior cases, text, and original meaning have greater gravitational force. On the other hand, precedents that do not attempt consistency with precedent, text or history are less weighty. The Law Works Itself Pure And this bring us to the aphorism, “the law works itself pure.” Over time, neorealist judging does not lock in realist precedents. As neorealist precedents accumulate, the force of realist decisions is gradually eroded—their gravitational force growing ever less powerful with time. Strong stare decisis does not require the view that errors can never be corrected. Quite the contrary. As time passes, realist decisions control a shrinking domain, then are confined to their facts, and finally are overruled. How can that be? If precedents are binding, how can they ever be overruled? You already know the answer. Formalist judges overrule precedents when, but only when, they have become so inconsistent with the surrounding legal landscape that respect for precedent requires that they be overruled. This move is so familiar to common lawyers that we don’t think twice when we see it happen. Life in the Fast Lane Recall that our project is to develop the best conception of neoformalism. Using constitutional interpretation for illustrative purposes, we are comparing two theories. Both incorporate textualism and originalism. Both incorporate strong respect for vertical precedent. Both incorporate strong respect for precedent by intermediate courts of appeal. Strong stare decisis extends the principle that precedent is binding to courts of last resort. Weak stare decisis eschews this move, incorporating instead the view that prior Supreme Court decisions can be ignored when they are inconsistent with text or history. And if the historical circumstances are right, weak stare decisis has the advantage of speed. If neoformalists control the bench, they can move more quickly toward the constitutional interpretations that would be correct if the courts were writing on a blank slate. But the advantage of speed comes at a heavy price. Neoformalism infused with strong stare decisis moves at a more deliberate pace, but no step is taken until the path is sure. This tradeoff is inevitable. The law cannot be both flexible and stable at the same time. The fast lane is not for those who are devoted to the rule of law.
Temporal Asymmetry I am not making this up. I've gotten versions of these reactions from several correspondents and similar points have been made in the blogosphere. But when we juxtapose the reactions, the temporal asymmetry is striking. The right is looking forward. The left is looking backward. And both sides are looking at particular decisions which form bedrock for them. I've avoided naming names, because the list will vary from individual reader. The usual include Miranda and Roe v. Wade and a host of others. But this is weird? Why doesn't the right observe that strong stare decisis would have prevented many of the realist abuses of the Warren and Burger Courts? Why doesn't the left remark on the fact that strong stare decisis would prevent a rapid dismantling of the Warren Court legacy? And why are both left and right focused on this particular era in our history, ignoring the long run? Heuristics and Legal Theory All of this sounds odd, but we should not find it surprising. Because both the left and right are reasoning as we should expect, because these modes of thought are quite natural for humans. Evaluating theories of judging is a very difficult task. Much of the work is quite abstract. Examples are relevant, but their assessment is extremely complex, because practices of judging interact systemically with underlying political forces and hence with legislative and executive action. As a result, the implications of a theory of judging for particular issues are almost impossible to assess if one looks at the issues from a long run perspective. Here it comes. And so, it is quite natural for us humans to use simplifying heuristics to avoid these dauntingly complicated tasks. How do we simplify? First, we focus on a few concrete examples upon which we have firm opinions. Second, we adopt a very particular temporal perspective. What would theory X have meant for issue Y if it had been put into place at time Z. What would strong stare decisis have meant for the right to choice if it had been adopted by the Supreme Court right before Roe v. Wade was decided? A ha. Now I have some evidence I can work with. And then we simplify our task in yet another way. We use what cognitive science calls that "Take The Best" (TTB) heuristic for reasoning. When an issue is complicated and reasoning is tough, one way to simplify the problem is to look at the available evidence, rank its quality, and then take the best evidence and make your decision on the basis of that evidence alone. When we reason about theories of judging, the combination of these two heuristics is deadly. We evaluate theories of judging by the implications they would have for a tiny number of decisions if they had been implemented right before or right after those decisions were made. But once you step back, it is obvious that this mode of reasoning is entirely inappropriate for the task at hand. But because an adequate mode of reasoning is time consuming and just plain hard, we can't help ourselves. The temptation to react quickly on the basis of wholly inadequate evidence is almost irresistible. Saturday, June 07, 2003
Barnett on Judicial Activism Randy Barnett has a very thoughtful post entitled WHY THE REPUBLICANS ARE LOSING THE WAR OVER JUDGES over at the Conspiracy. Here is a taste:
New Papers on the Net Here is the roundup:
Friday, June 06, 2003
Symposium on Fiss The latest electronic edition Issues in Legal Scholarship has a symposium entitled The Origins and Fate of Antisubordination Theory. Here is a roundup of the articles:
David A. Strauss, Group Rights" and the Problem of Statistical Discrimination. Rogers M. Smith, "Black" and "White" in Brown: Equal Protection and the Legal Construction of Racial Identities. Peter H. Shuck, Groups in a Diverse, Dynamic, Competitive, and Liberal Society: Comments on Owen Fiss's "Groups and the Equal Protection Clause". Daniel Sabbagh, Affirmative Action and the "Group-Disadvantaging Principle. Christopher Kutz, Groups, Equality, and the Promise of Democratic Politics. Richard Thompson Ford, Unnatural Groups: A Reacton to Owen Fiss's "Groups and the Equal Protection Clause". Jack M. Balkin and Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination. Kathryn Abrams, "Groups" and the Advent of Critical Race Scholarship. Donnelly at Oxford Today At Oxford's Jurisprudence Discussion Group, , Bebhinn Donnelly presents Teleology and moral duty. Thursday, June 05, 2003
The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part Two: Stare Decisis and the Ratchet.
The Ratchet The argument called "the ratchet" is actually a cluster of related arguments. All of the arguments share a common structure. Let me begin with a fairly standard statement of the argument:
A Game Theoretic Model of the Ratchet
Right: Ul(S) = S.
Round 2, Right-formalist = 0, total = -1. Round 3, Left-realist = -1, total = -2. Round 4, Right-formalist = 0, total = -2. Round 5, Left-realist = -2, total = -3.
Round 2, Right-formalist = 1, total = 0. Round 3, Left-realist = -1, total = -1. Round 4, Right-formalist = 1, total = 0. Round 5, Left-realist = -1, total = -1. An Extension of the Simple Model Let's extend the simple model. Let's assume that both players derive utility from the rule of law (stability and certainty). So let's assume that right player derives a utility equal to zero minus half the absolute value of the change in the state of the law from the previous round added to the utility derived from the state of the law. The left player has same utility function, modified to account for the fact the utility function of the left derives higher values from positions on the line that are to the left:
Ul(S{x}) = S{x} + 0.5 * |S{x}-S{x+1|}l Back to Stare Decisis You, gentle reader, are probably getting quite impatient. My abstract model is aimed at formalism and realism, but the topic at hand is stare decisis. You have already observed, no doubt, that both the simple model and the extended model can be applied to stare decisis. But here is the crucial point. Even if you are a formalist, you may reject the idea that following stare decisis is the formalist move. Or more precisely, you may believe that there are different conceptions of formalism and that the best conception does not incorporate a principle of strong stare decisis for courts of last resort. Let's simplify and assume that one conception of formalism is textualism, the view that judges on courts of last resort should adhere to the text, even if it is contrary to precedent. Textualism versus Realism So let's think about the implications of our model for the textualist. Let's and assume that we have a two player game. One player is "textualist," and the other player is "left realist." This game is much more complicated than our prior game, because we now have a two dimensional space for the state of the law. Textualist's evaluate the state of the law on a real line that runs from Fidelity to Text to Disconformity to Text. Left realists evaluate the state of the law on a real line that runs from Left to Right. Some left outcomes rank high on fidelity to text; others rank low. It is a matter of great controversy whether textualism as a theory tilts to the left or the right, but (simplifying greatly) it is commonly assumed that textualism probably tilts right. Arguendo, let's go with this simplifying assumption. Notice that even after this simplification, a formal model of the game would be extremely complex. Nonetheless, we can intuitively grasp what a complex model would reveal. The game between textualists and left-realists will have the general structure of the simple model above. On average, gains for left-realists are losses for textualists and vice versa. Now, consider the decision whether to follow precedent. If the textualist follows precedent and the left-realist does not, we have the ratchet. After each round of play, the law will have moved further away from Fidelity to Text and closer to Disconformity to Text. This is "the ratchet" as applied to precedent. Ideal and Nonideal Theory We need another distinction to allow a meaningful evaluation of the ratchet. Following Rawls, let's distinguish between ideal and nonideal theory. In our context, ideal theory involves making the assumption that judges perfectly comply with our theory of judging. Nonideal theory relaxes the perfect compliance assumption, and it is very important to specify with precision exactly how the assumption is being relaxed. The ratchet simply does not favor textualist formalism over a formalism that also incorporates stare decisis and one that does not is relatively easy as a matter of ideal theory. In the realm of idea theory, there are no realists to create a ratchet effect for realist precedents. The ratchet gets going when we move to the case of nonideal theory, imagining that the world is divided into two camps, only one of which will adopt some version of formalism. Here is the important point:
Politicization and the Ratchet So let's not assume that that the good guys comply perfectly with our best normative theory of judging and the bad guys just do what they please. But we don't want to resort to ideal theory--that doesn't get at the interesting questions. So let's assume that both the left and the right are capable of acting so as to advance their political ideology at the expense of the rule of law. And let's assume that both the left and right are capable of cooperating so as to advance the rule of law, if, but only if, they believe such cooperation is in their long-term self interest and also believe that they have good reason to trust that the other side will not defect from the cooperative scheme. And then what? And then we have reason to believe that the current situation can go one of two ways. On the one hand, if both sides treat the situation as a zero sum game, we can continue the downward spiral of politicization. On the other hand, if both sides can come to see that the rule of law is in their long-run self interest and come to have reason to trust the other side, it is possible to pull out of the downward spiral and begin the process of rebuilding the rule of law. That is all very abstract. How does it apply to stare decisis? The Role of Stare Decisis in Restoring the Rule of Law
A Fair Description of the Players Here is where I'm gonna lose you. There are few devils and fewer angels among the players of the judicial selection game. The left does not consist of unprincipled realists, willing and able to sacrifice the rule of law on the altar of poetically correct results. The right is not made up of hypocritical formalists, devoted to text and original meaning only when and because it advances their agenda, willing to don realist garb as soon as the 11th Amendment or a Presidential election is at stake. But . . . And this is a big but. But both sides are all too ready to see their rivals in the worst possible light. Both the left and the right see the value of the rule of law. Both the left and the right are afraid that if they decide cases on the basis of the rules laid down, the other side will take advantage. Both the left and the right see their rivals as fundamentally untrustworthy. A fair description of the players depicts few devils and fewer angels and many, many well-intentioned but fallible humans. The Options So given the lay of the land and a realistic assessment of the players, what are the options. How can we prevent a downward spiral of politicization? How can we restore the rule of law? Here are some options.
Wait for a Crisis Pessimists on both sides despair of any solution short of a crisis. The downward spiral must run its course. When things get bad enough, then, and only then, will there be sufficient political pressure to break out of the prisoner's dilemma. But the pessimists are not pessimistic enough. Because it isn't clear that it is so easy to pull out of a downward spiral of politicization once you are at the bottom. The bottom is inhabited by thoroughly corrupt judges who see every case as a patronage opportunity and lawyers who see briefs and arguments as less than mere window dressing. One of the dirty secrets of American law is that we have already hit bottom--in counties in Southern Illinois, in Texas, in Louisiana, and elsewhere. Wait for a Crisis is surely the option of last resort. Formalism With Weak Stare Decisis And this brings us to one of the current favorites. Many formalists (on the right) are tempted by the idea that we can have formalism without stare decisis. Judges should adhere to the plain meaning of the constitutional text in light of the historical evidence of original meaning. This is sufficient to restore the rule of law, and it has the great tactical advantage of allowing the Rehnquist (soon to be Thomas?) Court to roll back the realist decisions of the Warren and Burger Courts. But this is not a stable solution, once we think about the reaction of the left. On the hot button issues, the text and history allow too much room for maneuver. Even if the left were to embrace formalism without stare decisis, we would expect that the struggle to politicize the court to continue--the terms of debate would be different but the underlying realpolitik would be the same. And there is an even more fundamental problem, formalism without stare decisis looks like it has been jury-rigged in favor of those outcomes the right prefers--especially given the current political situation and composition of the Court. And because formalism without stare decisis will be perceived as unprincipled, as a program for the restoration of the rule of law it is doomed to failure--unless supplemented by total victory. Formalism With Strong Stare Decisis And that brings me to the final option of my list--formalism with strong stare decisis. Would this option create the possibility of restoring trust? Here is the interesting point. The very argument used against strong stare decisis--the infamous ratchet--explains why stare decisis is likely to be effective as a confidence building measure. If formalist judges of the right are willing to respect realist precedents of the left, this is a clear and convincing demonstration that the right is serious about the rule of law. And there is more good news. The judicial selection/decision game is not a zero sum game. Both sides lose from a downward spiral of politicization. Both sides gain from the rule of law. Trust is the key to the emergence of a stable, cooperative equilibrium with both sides committed to appointing formalist judges and each side willing to allow the other the privilege of appointing judges from its own party. Part III: Precedent and Principle Hasen on the Nuclear Option Check out Rick's post here, commenting on this article from Roll Call and arguing that there are insufficient Republican votes for a unilateral move to change Rule 22. Update: Rick posts a letter from a Senate attorney here. And here is a link to the Frist/Miller proposal. Senate Rules Committee Filibuster Hearings Courtesy of Marcia Oddi of the Indiana Law Blog, Senator Lott's Committee holds hearings today. Here is the witness list. And here is a link to the audio (2:00 p.m. E.D.S.T. today). For my thoughts on the so-called "nuclear option," check out this post. And for more, go here. Lemley and Burk on Biotech Uncertainty Mark Lemley (UC) Berkeley and Dan Burk (Minnsota) have posted Biotechnology's Uncertainty Principle on SSRN. Their paper offers a timely and important critique of the Federal Circuit's biotech patent jurisprudence--a must read for the IP crowd. Here is the abstract:
New Papers on the Net Here is the roundup:
Francis Regan (Flinders University) posts The Swedish Legal Services Policy Remix: The Shift from Public Legal Aid to Private Legal Expense Insurance, forthcoming in the Journal of Law and Society. David Capper (Queen's University Belfast) uploads The Contingency Legal Aid Fund: A Third Way to Finance Personal Injury Litigation, forthcoming in the Journal of Law and Society. Louise Anderson (Federal Court of Australia) posts The Law and the Desert: Alternative Methods of Delivering Justice, forthcoming in Journal of Law and Society. Sydney Cone (New York Law School) offers Legal Services in the Doha Round, forthcoming in Journal of World Trade. Richard Weisberg (Cardozo) posts The Legal Speaker and Writer at the New Millennium, with an Application to Justice Souter. Jeanne Schroeder (Cardozo) posts Can Lawyers Be Cured?: Nietzsche's Theory of Eternal Recurrence and the Lacanian Death Drive Carl Coleman (Seton Hall) offers Rationalizing Risk Assessment in Human Subject Research, forthcoming in the Arizona Law Review. Robert Sitkoff (Northwestern) offers An Agency Costs Theory of Trust Law, forthcoming in the Cornell Law Review. Wednesday, June 04, 2003
The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part One: The Three Step Argument. Why care about precedent? If you are a realist, precedent just gets in the way of the real purpose of law--to achieve social policy goals or accomodate the balance of social interests. If you are a formalist, precedent can get in the way of making decisions that respect the plain meaning of the text. Either way, why care about precedent?
The Plan So here is the plan. My discussion will be organized around four questions. First, what is stare decisis? Second, what is the case for a strong doctrine of stare decisis? Third, what are the arguments against stare decisis? Fourth, how can we resolve the debate? What is Stare Decisis First things first. What is stare decisis?
A fully developed theory of stare decisis enables lawyers to distinguish between the holding of case, which is legally binding, and mere dicta, which are not part of the reasoning essential to the result reached. State Decisis versus Law of the Case When the Supreme Court decides a particular case and remands, its decision is binding on the lower court in that case. Technically, this is not precedent or stare decisis. This binding effect is called law of the case, and almost everyone agrees that the functioning of a judicial system with vertical hierarch (higher and lower courts) requires that the decisions of the higher courts bind the lower courts--even if the lower court judge thinks that the higher court made a bad decision.. Horizontal versus Vertical Stare Decisis Within the doctrine of stare decisis, it is important to distinguish what we might call vertical and horizontal contexts. Vertical stare decisis applies when a Supreme Court decision in one case binds the lower courts in other cases. Horizontal stare decisis applies when a Court is bound by its own prior decisions. In the United States, vertical stare decisis is a part of the law of every jurisdiction. In the federal system, the United States Supreme Court does not consider itself strongly bound by horizontal stare decisis, but the Courts of Appeals do consider themselves bound. Strong and Weak Stare Decisis What is the force of precedent? Some courts afford precedent great force--treating the doctrine of stare decisis as a rule with binding force. Other courts give precedent only the barest nod of respect--treating the doctrine of stare decisis as a mere presumption--a bubble that can be burst by any countervailing force. In between, we can imagine courts giving the precedents substantial deference but setting aside caselaw when there are substantial or compelling reasons.
Step Two: Horizontal Stare Decisis in Intermediate Appellate Courts And these same considerations apply with almost equal force when the context changes to question whether the intermediate appellate courts--the United States Courts of Appeals in the federal system--should follow precedent. A bit of institutional description is necessary. In the federal system, there are thirteen different courts of appeals (all but one of which hear cases orginating from geographic territories). Each court of appeals has several judges (and one, the NInth Circuit, has more than two dozen judges). When these courts here cases, three judges form a panel--and this feature is required for these courts to process the tens of thousands of cases they hear each year. If the Courts of Appeals did not follow stare decisis, this would mean that in every single case involving legal issues on which there was no controlling Supreme Court precedent, each panel would be entitled to make a de novo decision on the unctrolled issue. It would not be unusual for the same legal issue to be decided by a different panel of the relevant Court of Appeals each time the issue was presented. This system would certainly reduce the certainty and predictability of the law--more in some areas of the law than others, of course. Once again, rule of law values support a very strong doctrine of stare decisis. Caveat: I have left the system of en banc review out of my simplified (blog) version of the argument. The current practice is that a Circuit can go en banc, sitting as a whole rather than in three-judge panels. When a Court of Appeals goes en banc, it has the power to overrule precedent, and, importantly, this feature is partially inconsistent with strong stare decisis. Only partially, because the most important use of the en banc power to overrule is in the case of inconsistent decisions by individual three judge panels. Correction of these inconsistencies is actually required by strong respect for precedent. The other use of the en banc power is to overrule prior circuit precedent on the ground that it is wrong. When a circuit does this en banc, which is rare, the circuit is acting like the Supreme Court--raising the same issues as I discuss in Step Three. So here we go. Step Three: Horizontal Stare Decisis in Courts of Law Resort
The Implications of Steps One and Two Let's begin with a point that might seem obvious, but is frequently overlooked. If you accept Step One (vertical precedent) and Step Two (horizontal precedent for intermediate courts of appeal), you have prima facie reason to believe that courts of last resort should follow their own prior decisions. If courts of last resort simply ignore precedent, then in each and every case and on each and every issue, in theory, the law is uncertain. Why? Because without any doctrine of precedent, the court should change its mind on an issue if the court views the balance of reasons differently than it did no a prior occaision. This is always a theoretical possibility, although in practice it may be unlikely. But the problem is more than theoretical. On many issues, a switch in positions will be somewhat likely or even very likely--if the court gives no deference to its own prior decisions. Again, why? For many reasons, including the following:
--The issue was badly argued and briefed on a prior decision, and hence, the balance of reasons is likely to differ upon reconsideration. --The issue is a close one, and even a slight difference in either the court's composition or the way the issue is argued, could produce a different result. Beyond Minimal Stare Decisis: The Case for a Strong Doctrine This first move is an important one, but it is not sufficient for my purposes. I need to argue for strong stare decisis. Furthermore, ceteris is not paribus, because the Supreme Court differs from lower courts in important ways. So what is the case for a strong doctrine of precedent at the level of courts of last resort? Why should the Supreme Court pay more than lip service to its own prior decisions? Several points need to be made:
Second, the stronger the doctrine of stare decisis, the more determinant the meaning of the general and abstract clauses of the constitution. This is a crucially important point, especially given the the nature of the United States Constitution. Remember we are asking the question: why should a formalist care about stare decisis? And a formalist might say, I don't need the doctrine of precedent, because I will interpret the constitution in a manner that respects the text and its original meaning. And from where I sit, this is a powerful and important argument. And if our constitution did not include provisions like the equal protection clause, the due process clause, the privileges and immunties clause, the freedom of speech, etc., the formalist case against stare decisis might be quite strong. But sophisticated formalists do not and cannot claim that text and history provide fully determinant meanings for the grand (or perhaps badly drafted) clauses of the Constitution. These clauses are inherently contestable. And this fact leads to another . . . Third, the stronger the doctrine of stare decisis, the lower the risk of politicization. Precisely because the Constitution has abstract and ambiguous clauses, there will be a great temptation for the poltical branches of government to affect constitutional interpretation. A strong doctrine of stare decisis limits this opportunity to those issues which are left open by prior decisions. A weak doctrine of stare decisis inherently increases the incentives for and hence the likelihood of politicization. To complete this argument, I need to argue that politicization of the judicary is a very bad thing--but since I have done that on a number of prior occaisions, I will not repeat that argument here.
Second, even during periods of stability in membership, the Supreme Court may become highly unstable. Anyone who is familiar with constitutional doctrine knows that the contemporary Supreme Court has had an extraordinary series of flips and flops on crucially important issues. A stark example is the Supreme Court's 10th Amendment jurisprudence, from National League of Cities v. Usery forward. In these cases, the Court was closely divided and justices in the middle did not vote consistently. As a result, the law became radically unstable and uncertain. Also, because some cases involve multiple decisive issues, there is no guarantee that the court will be able to render a coherent decision that can guide the lower courts. Strong stare decisis does not eliminate this problem, but it radically reduces the number of occaisions in which it will arise. Third, At any given time, most issues upon which the Court might pronounce are only addressed by precedents from Courts with radically different compositions. The Supreme Court does not revisit the entire federal corpus juris every year or even every several years. At any given point in time, the vast majority of Supreme Court precedents were decided by courts with little or no overlap in membership with the current court. As a result, without a doctrine of stare decisis the majority of the federal corpus juris is not only up for grabs in theory, it is up for grabs in practice as well. Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle 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. Tuesday, June 03, 2003
Internet Governance Symposium The Loyola of Los Angeles Law Review has an important symposium on internet governance, edited by Michael Froomkin. Michael has put together a very impressive lineup. Here is the roundup:
Confirmation Wars Department: Curry on the Reasons for a Downward Spiral Tom Curry has a piece entitled Court vacancy would trigger political warfare on MSNBC. Here is a taste:
--Confirmation battles are motivators and fund-raising beacons for advocacy groups from People for the American Way on the left to Concerned Women for America on the right. --Over the past 40 years, Democrats have proven to be stronger in congressional elections than in presidential elections. Republican presidents from Richard Nixon to George Bush crushed their Democratic opponents — but then usually were faced with a Senate that was still under Democratic control. Democrats have had enough votes to defeat three Republican nominees since 1969, and to nearly scuttle a fourth, Clarence Thomas. --Confirmation warfare is fueled by a fundamental dispute over how to interpret the Constitution. Most liberals want the Constitution to be read expansively to guarantee broad privacy rights and to permit government action to redress economic inequality. Many conservatives want a reading of the Constitution in which individual rights are limited to those specified in the text and interpretations are governed by the intentions of the Framers. Still Bloggered If you have been having trouble reaching this site recently, the difficulty is with blogger/blogspot, the hosting service for many blogs and blawgs. The site has been loading slowly or your browser may tell you that the site does not exist at all. Recently, I have noted that Internet Explorer is treating the blog as an FTP site, and asking whether I wish to open or download the file. In addition, the loading time for most blogspot blogs has now exceeded Google's tolerances, and if you normally visit via doing a google search such as "legal theory" or "legal theory blog," you may be referred to the February 2003 archives rather than the main page. You can always return to the main page by click on "Home" on the sidebar at the very top. I am losing hope that this problem will be cleared up in the immediate future, but I am keeping my fingers crossed. Internet Governance and Democracy Deficits One of the most interesting questions in the theory of Internet governance is concerns the role of democracy. That is why I was particularly interested when I saw that Dan Hunter (Pennsylvania, Wharton) has uploaded his paper, ICANN and the Concept of Democratic Deficit, forthcoming in the Loyola of Los Angeles Law Review, on SSRN. Here is the abstract:
This Article seeks to articulate these political commitments and to explain why democracy and ICANN are such a poor mix. It begins by charting the rise of ICANN and its attempts to be democratic. It then explains why democracy is an empty shell of a concept. It then explores some features of democracy and ICANN, explaining why the online world exposes limitations in implications of democracy such as the nature of the demos, the idea of constituencies, direct democracy, voting, and the like. It concludes that ICANN's example demonstrates that democracy is in fact anything but a coherent general theory of political action. We need to consider, then, whether we should continue to berate ICANN for its undemocratic actions. New Papers on the Net Here is today's roundup:
The article argues that it is a misguided view of federalism that the federal government somehow invades the sovereignty of the states by pursuing criminal prosecutions for certain types of conduct already subject to prosecution by state and local authorities. The source of that misunderstanding is the Supreme Court's broad language in Lopez and Morrison asserting that matters traditionally viewed as "local" - including the prosecution of violent crimes normally brought in state and local courts - are reserved in some way from regulation by the national government. Under this approach, federalism becomes not just an aspect of constitutional analysis, but also a new type of defense in federal prosecutions. The article analyzes decisions of the lower courts imposing an independent federalism limit on prosecutions that are not, according to the judges, of sufficient national interest. This misuse of federalism is, in reality, a new form of supervisory power to control prosecutors through a flawed application of federalism.
Barnett on the Necessary and Proper Clause Randy Barnett (Boston University) has uploaded a new paper to SSRN: The Original Meaning of the Necessary and Proper Clause, forthcoming in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract:
This is the companion to two previous articles - "The Original Meaning of the Commerce Clause" 68 U. Chi. L. Rev. 101(2002) and "New Evidence on the Original Meaning of the Commerce Clause" 55 U. Ark. L. Rev. 847 (2003) - in which I presented evidence of the public meaning of Congress's power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." To determine the constitutionality of any particular legislation and evaluate judicial applications of the Commerce Clause, however, we must also consider the meaning of the Necessary and Proper Clause. For the expansive post-New Deal reading of congressional power owes as much to the Supreme Court's interpretation of the Necessary and Proper Clause as it does to its expansive reading of the Commerce Clause. Monday, June 02, 2003
Bashman on Stare Decisis Howard Bashman (How Appealling) has a terrific op/ed in the Los Angeles Times (registration required). Here is a taste:
Adler on Risk, Death, and Harm Matthew Adler (Penn) has posted Risk, Death and Harm: The Normative Foundations of Risk Regulation on SSRN. Here is the abstract:
In this Article, I consider the harmfulness of death, and of the risk of death, in a philosophically rigorous way. The analysis is complicated, since a variety of plausible theories of welfare have been proposed, and since risk too is a multifaceted concept. A given person P's "risk" of death might be risk in a Bayesian sense (some person's subjective probability that P will die), or risk in the frequentist sense (the objective frequency with which persons like P die prematurely as a result of the kind of threat to which P is exposed). These two conceptions of risk are very different, yet too often are not distinguished in legal or policy-analytic writing about risk. As for the harmfulness of death: this raises knotty philosophical problems, problems that have prompted some contemporary philosophers to deny that the dying person is worse off than she would have been had she continued to live. I ultimately conclude that death is a first-person welfare setback common sense is vindicated here, I argue as is risk in the Bayesian sense, but that risk in the frequentist sense is not. This conclusion has implications for a range of regulatory practices specifically, for cost-benefit analysis, risk-risk analysis, the interpretation of statutes that create health or safety thresholds, environmental justice policy, and comparative risk analysis and also for tort and criminal law. These implications are explored, at length, in the final section of the Article. In particular: the widespread use of frequentist risk measures as a determinant of regulatory choice is misguided. EPA, OSHA, FDA and other federal and state agencies typically determine how stringently to regulate some toxin by looking (at least in part) to the frequentist risk imposed by the toxin on the maximally exposed, highly exposed, or representative individual. Similarly, environmental justice analysis is often keyed to the distribution of frequentist risks. And some propose that regulatory priority-setting (so-called comparative risk assessment) also take into consideration frequentist risk. This regulatory focus on frequentist risk was encouraged by the Supreme Court's seminal decision in the "Benzene" case (Industrial Union Dept v. American Petroleum Institute, 1980), and is endorsed by the risk assessment community. But the practice has no normative basis, and should be abandoned. Similarly, risk-imposition in the frequentist sense should be neither tortious nor criminal - at least if harmfulness is a precondition for liability in these domains, as it may well be. Workshops Today Here is the roundup:
At Florida State, Sandy Miller (Widener School of Business Administration) presents A New Direction for LLC Research in a Contractarian Legal Environment. Sunday, June 01, 2003
Oman on Audi Nate Oman has a very good post on Robert Audi's book titled Religious Commitment and Secular Reason. Audi is the most articulate advocate of the view that public policy should be based on secular reasons. Here is a taste of Oman's post:
Volokh on Free Expression & IP Eugene Volokh (UCLA) has posted Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, Saderup, and Bartnicki to SSRN, also forthcoming in the Houston Law Review. Here is the abstract:
New Papers on the Net Here is the roundup:
Blogging From Rutgers: Legal "Realism" Yesterday was the final day of the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson and Kim Ferzan. Colin McGinn was the speaker and his topic was realism. McGinn's position is that, pace Michael Dummett, there is no single sense in which realism is used in the various realist/antirealist philosophical debates. Rather, McGinn, suggests, that there are at least three senses of realism:
--Realism as Objectivity. In a second sense, one is a realist about something if one believes that thing is "objective" as opposed to "subjective," where objective is understood as meaning independent of the mind. In this sense, one is a realist about the external world if one believes that mountains and stars exist independly of human minds. --Realism as Determinacy. In a third sense, one is a realist about a domain if one believes that propositions with the domain are determinant in the sense that they are either true or not true. (To simplify, true or false.) Thus "Hamlet has a mole on his left shoulder" is neither true nor false, because Shakespear never tells us whether Hamlet does or does not have such a mole--therefore, on the determinacy conception of realism, one would be an antirealist about Hamlet's mole.
--Objectivity. Is the question whether affirmative action violates equal protection mind independent? In one sense, obviously not. The equal protection caluse is a product of the human mind. On the other hand, we might say that given that humans have created the equal protection clause, it's meaning is independent of what we think about its meaning. --Determinacy. And of course, there is (or was) a raging jurisprudential debate over the determinacy of law. So those who hold that the law is indeterminate, are not realists in this sense. |