Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Sunday, August 31, 2003
Legal Theory Calendar
At the University of Texas, the UT Symposium on Globalization and the Judiciary starts today.
Hegel Society of Great Britain, Annual Conference, "Hegel and Social Theory," at St Edmund Hall, Oxford.
At the University of Texas, the UT Symposium on Globalization and the Judiciary continues.
At Oxford, Hegel Society of Great Britain continues.
Muller on the National Constitution Center Eric Muller blocs on the National Constitution Center over at the Conspiracy. Muller agrees with my observation that the centerpiece of the museum (an multimedia presentation combining a live actor with high tech visual images and audio) doesn't actually say much about the Constitution itself. He continues:
Saturday, August 30, 2003
Blogging from Philadelphia: Natural Law in a Secular Society
Herman Belz (University of Maryland) is next. He asks: is there a natural law, what is it, how is it to be made effective, and what does it have to do with religion, what is the metaphysical ground of natural law? Belz says that the significance of natural law is to constitute an order to human flourishing. Belz then quickly moves through a laundry list of recent natural law scholarship. Belz then shifts to the question whether “natural law” is a useful bit of terminology, quoting Russell Hittinger for the proposition that it is not. He then jumps again, talking about “natural law” as a theory of law and legal authority. Belz then argues for a position that directly contradicts Barnett, arguing that unless natural rights begin with moral premises, they lack moral standing. At this point, Belz’s argument is completely obscure; I simply had no idea what he might be trying to say.
Stephen A. Simon (University of Maryland) follows Belz. Simon disarmingly admits his status as a graduate student. He asks: “How do we recognize natural rights discourse, where do we find it, does it make a difference?” He signals that he we also address the question as to what role natural rights play in constitutional discourse? Simon complains that the Supreme Court frequently reduces rights to a balancing of interests and suggests that natural rights discourse offers alternative to this. He then turns to the word “liberty” in the 14th Amendment of the United States Constitution. Simon then turns to the question whether natural rights analysis is sufficiently determinate to guide particular constitutional decisions. Unfortunately, he runs out of time, just as things are starting to get interesting.
Karol Soltan (University of Maryland) follows. Soltan starts by making a distinction between the natural law of the natural law versus positivism debate. And natural law can also be a distinct body of law. What kind of law is this? (Soltan refers to the famous “natural law . . . is discovered” passage from Cicero’s De Re Publica.) Natural law, he says, is universal and unchanging. Soltan notes that these claims of universality and atemporality is seen as implausible. Soltan notes that the usual reason given here is epistemic but that Cicero’s claims are ontological. Natural law can be unchanging, even if opinion about its content changes. Soltan then briefly suggests a possible connection between natural law and basic human rights.
Christopher Wolfe (Marquette University) is the next speaker. Wolfe suggests four conception of natural law: (1) human beings have natures that direct how we should live—a very general and abstract but indeterminate conception; (2) there is a stable human nature that sets limits on the means by which humans can achieve a satisfactory existence; (3) a natural order of beings whose fulfillment consists in their realizing their innate potential (e.g. development of the human excellences or virtues); (4) natural law as understood by Aquinas, connected to the grasping of self-evidence first principles. Wolfe then suggests “natural law liberalism,” a common good the emphasizes the individuality and dignity of each individual, the plurality of ways of human life, and the importance of liberty.
Discussion: The initial discussion focuses on Barnett’s distinction between natural law and natural rights. George is particularly interested in the relationship between his account of the common good as the end of society, which does suggest the importance of liberty, but which George argues requires more than rights. George argues that common good is the key concept. Barnett does not disagree with the abstract formulation, and emphasizes that even on his libertarian view, rights are not the whole story. Barnett uses “rightful” and “wrongful” and “good” and “bad.” What law can do, Barnett argues, is prohibit wrongful activity. It can regulate but not prohibit rightful activity. Wolfe asks whether it would be a violation of the rights of others to disobey a conscription law? Barnett replies that conscription laws are themselves violations of natural rights. Barnett notes, however, that this goes to the substance of one’s theory of natural rights—as opposed to the general structure of natural rights, per se. George then throws this question on the floor: Can there be natural law if strict materialism is true? Unfortunately, this topic is dropped and the discussion turns to the question whether religion is necessary at what I would call a “rhetorical” or “psychological” level. George himself suggests that religion can open one to the idea of a moral order, or, in the case of some religions, close one to that idea. Sotiris Barber jumps with a question for George on whether this openness or closedness should be a criterion by which one selects are religion—a question that seemed to take the discussion far afield of the topic at hand.
Download of the Week Each Saturday, I recommend one of the new papers discussed on this blog from Sunday through Saturday as the download of the week. This week my recommendation is Mark Tushnet's Clarence Thomas's Black Nationalism, forthcoming in the Howard Law Journal. Tushnet is without doubt one of the most creative, thoughtful, and intellectually rigorous constitutional theorists working today. He was, of course, one of the most important members of the Critical Legal Studies movement, and he continues to write with unusual clarity and depth about the fundamental issues of constitutional theory. If you already know Mark's work, you have likely downloaded the paper already. If you do not, you are in for a treat.
Barnett on Natural Rights at APSA Today at the American Political Science Association meeting in Philadelphia, Randy Barnett is presenting The Imperative of Natural Rights in Today's World on SSRN. Here is the abstract:
Friday, August 29, 2003
Blogging from Philadelphia: Pluralism and Political Virtue
Mariah Ananda Zeisberg (Princeton) is next up. Her paper is titled Value Pluralism and Constitutional Meaning. Zeisberg’s paper was about one of the central questions in constitutional theory—whether the constitution should settle issues or actually facilitate disagreement. Zeisberg’s thesis is that the constitution should, at least with respect to some issues, allow issues to be unsettled, acting as a locus for dispute and disagreement. To illustrate the way in which constitutional meaning can be “ussettled,” Zeisberg emphasizes the phenomenon of constitutional conflict, giving as an example the tension between “national security” and “freedom of speech.” The constitution, she argues, is silent on the question of how these two constitutional commitments are to be reconciled. Zeisberg then argued that constitutional conflict leads to political benefits. For example, she argued that groups mobilize to make constitutional claims, leading to retheorizing of the underlying value conflicts. In other words, constitutional conflict can serve as a catalyst for the rethinking of important normative issues. Zeisberg then turns to what she calls the settlement thesis. The constitution, she argues, is not designed to settle disputes, but often is designed to enable or initiate them. (Equal protection, she argues, is an example.) The struggle to create constitutional meaning is a form of democratic politics.
Second, the distinction between core and ideal virtues—while valuable—misses the important mark. Sabl is trying to cope with disagreement about the virtues, but the core versus ideal distinction doesn’t track the distinction between virtues on which there is consensus and virtues on which there is dissensus. Some virtues in Sabl’s core will be the subject of disagreement, while others which are ideal will be the subject of agreement. A more apt distinction is between thick and thin theories of the virtues. Thin theories make weak assumptions. A thin theory of the virtues is one that can be affirmed by those who disagree on substantive political ideals. A thick theory of the virtues makes strong assumptions. It specifies those virtues are implied by the controversial assumptions of particular controversial political doctrines. A thin theory can become the subject of an overlapping consensus between those who disagree about political substance.
In the ensuing discussion period, many interesting points are made. Kochin disagrees with Sabl over the role of politicians, with Kochin disagreeing with Sabl’s characterization of citizens as those in need. Sabl addresses the question whether the instrumental view of political virtue is self-undermining, responding that he does not worry about this, since no one listens to political theorists. I ask Andy Sabl what he means by virtue, noting that much of his discussion could be about either action or attitude. Sabl gives a most unsatisfactory answer—saying that this is a problem, but that he doesn’t mean anything deep by virtue but rather is mere dispositions to act. O.K., but then nothing is added by the term “virtue.” Mere dispositions to act are simply actions. Without something deeper—without an account of the mechanism of disposition—there is no point to using “virtue” as the framework for discussion. Philip Pettit asks an eloquent and deeply smart question, which the panel does not quite seem to get. Later, Jacob Levy (University of Chicago) and Zeisberg have a good exchange.
In further discussion, William Galston makes a few points, one of which is that a functional account of virtue makes the specification of the end the determinant of what counts as a virtue. He emphasizes that Deweyian democracy and socialist democracy are not necessarily liberal democracy. His own account of the virtues, he argues, is based on a particular ideal of liberal democracy. Galston emphasizes that then the importance of virtue becomes an empirical question, quoting Kant’s famous remark about a nation of devils: if we get the institutions right, the distribution of virtues may not matter. Galston says he his own project was to show that Kant was wrong on empirical grounds. As Galston continues to speak, the audience ceases to fidget and listens with rapt attention. His remarks are so illuminating and penetrating that they bring the whole session together in a way that is rare and fine. Sabl responds, but his answer seems confused. He says that the empirical inquiries are value laden, but then talks as if Galston had said that what constitutes “liberal democracy” is an empirical question—missing the point of Galston’s remarks. The discussion continues a bit, with Galston noting that Sabl seems to refer to “equality” as a virtue, an obvious mistake. Sabl writes a promissory note for a vindication of his remarks on this last point.
Conference Announcement: Law, Loyalty, and Treason
Goode on the Whole Person Today at the University of Texas law faculty workshop series, Steve Goode does an internal workshop titled "Meeting of the Committe of the Whole Person."
New Papers on the Net Here is today's roundup:
Privacy Wrongs in Search of Remedies Hastings Law Journal, Vol. 54, 2003 Joel Reidenberg Fordham University School of Law Abstract:
Thursday, August 28, 2003
My Dinner with Dennis
Redemption But the Center is redeemed by the final exhibit, a wonderful set of life-sized statues of the signers of the Constitution. They are very well executed, and if you know their writings and speeches, they almost come to life. I was charmed by Madison, with his kind and scholarly face, and a bit put off by Hamilton, who was something of a dandy. Highly recommended.
And then . . . I almost always have great fun at academic gatherings. As you can probably guess, I love to go to the papers. Sometimes they are terrible, other times dull, but I almost always find panels that are very interesting. There are several at this year's APSA. But everyone knows that the real reason to go to an academic conference is for the conversations in the hall and the dinners with colleagues. I was very fortunate to be included in a small gathering hosted by the Dennis Patterson, the philosopher/academic lawyer from Rutgers Camden (Law) and Rutgers New Brunswick (Philosophy). Patterson is an extraordinary legal scholar. If you want an absolutely a treat try his Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. Pa. L. Rev. 335 (1988). Or even better, his book, Law and Truth, (Oxford University Press 1996). Dennis considers himself a post-modernist--a view against which I have rather powerful prejudices, but Dennis does it with real persuasive power and analytic rigor. The dinner and the conversation were a real delight.
Good night from Philadelphia!
Gardbaum on the Constitution in the Private Sphere Stephen Gardbaum (UCLA) has posted The "Horizontal Effect" of Constitutional Rights on SSRN. Here is the abstract:
Blogging from Philadelphia: Just War Theory Revisited
The first speaker is David Estlund (Brown, Philosophy):
Lawson on Wolfenstein & Workshops At Boston University's workshop series today, Gary Lawson, presents "Workshops and Wolfenstein." Lawson's is doing a metaworkshop, i.e. a law school workshop which is about law school workshops. Here is a taste of his very sensible paper:
Conference Announcement: The State of Play: Law, Games, and Virtual Worlds
Wednesday, August 27, 2003
Buck and Tusnet Stuart Buck comments on a recent paper by Mark Tushnet, here.
Barnett on Constitutional Theory & More on Posner's Review of Farber Over at the Conspiracy, Randy Barnett blogs on the value of a written constitution and in defense of originalism, here and here. And over at Discriminations, John Rosenberg responds to Posner's review of Farber's book on Lincoln's constitutiton.
Two from Tushnet Superstar constitutional theorist Mark Tushnet (Georgetown) has just posted two new papers on SSRN. Here is the low down:
New Papers on the Net Here are the new papers from SSRN:
Tuesday, August 26, 2003
Posner Reviews Lincolon's Constitution Richard Posner's review of Daniel Farber's book, Lincoln's Constitution is available on the New York Times website. Here is a taste:
Volokh on Religion in the Public Square Eugene Volokh had a marvelous post yesterday on the role of religious reasons in public policy. Highly recommended. Volokh is trying to get at an interesting and important distinction. His argument begins with an appealing intuition--that we should tolerate those who violate religious laws for religious reasons. Volokh uses religious toleration of Hindus as an example. Hindu religious practice violates is contrary to a variety of norms deeply embedded in the Judeo-Christian tradition, but very few Americans would support legal prohibition of these practices. But some Americans who would oppose criminalization of Hindu religious practice support criminalization of homosexuality--on the basis of religious commandments that seem relevantly similar to those which would seemingly support criminalization of Hindu religious practices. How can we explain this seeming anomaly? Volokh argues that our deeply held convictions about religious toleration for Hindus should lead to tolerate homosexuality. I urge you to read Eugene's excellent post, and I would suggest the following wrinkles and complexities:
--The Role of Religious Belief in Public Policy And here is another wrinkle. For many persons of deep religious faith, there is no line of separation between religious belief and beliefs about political morality. It is all part of a whole, and it is religious through and through. Of course, this varies from faith to faith and individual to individual. Some deeply religious individuals do separate their political beliefs from their religious beliefs, but many do not. If you believe in a comprehensive religious theory of the right and the good, then your stand on every public policy issue is religious. You believe that murder, theft, breaking contracts, etc., are all subject to legal sanction for reasons that rest on deep religious foundations.
--Contemporary Pluralism in the United States. But of course, in a modern democratic, pluralist, society, there are many different religions and religious views. In the United States, this pluralism has evolved over time. In the colonial period, religious pluralism was seen in terms of Catholics, Protestants, and Jews. (The faiths that slaves brought with them from Africa and that Native Americans already had were ignored by those who wielded power.) Today, the national polity is much more inclusive, with large numbers of Moslems, Buddhists, Hindus, Sikhs, Shintoists, Taoists, and adherents of dozens (or hundreds) of other faiths. And many Americans have deep belief systems that are not easily categorized as religious, not to mention agnostics, atheists, and those who simply do not think about these issues. The pluralism that characterizes contemporary American society is much broader and deeper than the kind of pluralism that emerged in Europe after the Wars of Religion and then migrated with religious dissidents to North America.
--Public Reason. In such a radically pluralistic society, there is a problem with basing public policy on religious reasons. In the colonial period, there was pluralism, but that pluralism was located in a Judeo-Christian context, in which the majority shared a set of religious texts (the Christian bible, which differed marginally from sect to sect, and the Old Testament which was shared (again with variations) by Jews as well). In this context, the ten commandments, for example, could be taken as common ground. (So engraving them on a courthouse wall would not be seen as a threat to religious liberty or the value of toleration.) "Public reason," the reason shared by all citizens, could include not just common sense, the shared lessons of history, and science--public reason could also include a common religious heritage. But today, this is not the case. If public policy is to be supported by public reason, then explicitly religious views are problematic. Even the most general and abstract religious propositions are controversial, once the relevant group includes Hindus, Buddhists, and atheists.
--An Ideal of Public Reason. So as a matter of political morality, a pluralist society needs an ideal of public reason. An ideal of public reason is not a law. An ideal of public reason is a standard of political morality. It helps to define an ideal of good citizenship, of what it means to be a good citizen in civic solidarity with fellow citizens who have radically different ideas about God and good. For us, for citizens of a pluralist democracy, the ideal of public reason is likely to require that public policies be justified (or at a minimum, justifiable) on the basis of public reasons. My own preference is what might be called an inclusive ideal of public reason. "Inclusive" in the sense that it says to citizens: bring all your reasons into the public square, both the deep reasons from your religious or philosophical beliefs about ultimate questions, and you shallow reasons--the values (like toleration, liberty, and equality) that are part of our public political culture.
Second, I think that Eugene's argument goes astray, because it implicitly assumes that persons of deep faith make a distinction between religious and secular reasons for public policy. Some do. Some don't. And for those who don't, Eugene's argument does not work. Because if you believe that all public policy must ultimately be justified on religious grounds, then it follows that toleration for homosexuality must be given a religious foundation.
20 Questions Crescat Sententia's latest installment of their interview feature is up. This week the legal theorist Randy Barnett answers 20 questions.
Call for Papers: The Jurisprudence of Justice Ginsburg
Workshop at Florida State At Florida State, J.B. Ruhl does an internal workshop titled Methodology and the Endangered Species Act.
Monday, August 25, 2003
New Weekend Features Two regular features have been added to Legal Theory Blog. On Saturday, there is the Download of the Week, a recommendation from all the downloadable papers posted from Sunday through Saturday. On Sunday, I will post the Legal Theory Calendar, which will highlight workshops and conferences from the upcoming week. (Yesterday's calendar features workshops at Florida State, Boston University, and the University of Texas.) If you would like your event listed in the calendar or if you can send me information on a workshop/colloquium schedule, please email: lsolum AT sandiego DOT edu.
Constitutional Legitimacy Will Baude of Crescat Sententia and PG of Half the Sins of Mankind have been discussing the topic of constitutional legitimacy. Why should we regard ourselves as bound by a constitution written by the dead hands of generations long past? This question is particularly pressing for constitutional theories that incorporate originalist theories of constitutional interpretation, because such theories privilege the intentions or understandings of the generation that ratified the Constitution (or provisions thereof). Contemporary ratification theories such as that advanced by Justice Brennan (and in a more sophisticated form by Jack Balkin and Sandy Levinson) avoid this problem while incurring others. So what makes a constitution legitimate? Before answering let's get this bit straight:
One more distinction: legitimacy and justice (or overall rightness) are distinct. A constitution that is just may be illegitimate and vice versa--depending on one's theory of legitimacy and the facts.
--Reliability. This view associates constitutional legitimacy with the tendency of the system to produce just outcomes. A reliability theory maintains that a constitutional system if legitimate if it meets a threshold requirement for the likelihood that it will produce just outcomes. In contemporary American constitutional theory, Randy Barnett is associated with this view.
--Comparative legitimacy. This view maintains that a system with a written constitution is legitimate in comparison with the alternatives. For example, the dead-hand problem may be real, but if the alternative is a dictatorship of unelected judges or unconstrained legislative power, following the original meaning of a written constitution may simply be the least-bad alternative.
New Papers on the Net Here is today's roundup:
Sunday, August 24, 2003
Three by Kaplow Louis Kaplow (Harvard) has three new papers up on SSRN:
The Legal Theory Calendar I am experimenting with some weekend features for Legal Theory Blog. Yesterday, I put up the first Download of the Week. Today, I am trying out Legal Theory Calendar. As the academic year is gearing up, I will be posting again on workshops, conferences, and other events of interest to the readers of this blog. My custom has been to post on an event the morning of the day it happens, but starting this week, I will also post a Sunday Calendar, with a summary of the events for the upcoming week. Here is the first installment:
Saturday, August 23, 2003
Download of the Week Frequent blogsurfers know that Saturday is traditionally the slowest day in the blogosphere. Over the course of the next few weeks, I'll be experimenting with some regular Saturday features. The first of these is the Download of the Week, my top recommendation of a downloadable paper of all those mentioned on Legal Theory Blog from Sunday through Saturday morning. Here goes:
Judge Moore and the Some Fine Legal Distinctions Over at 306Taint.Us, there is a post about Judge Moore, with the following observations:
Second, federal courts do have the power to issue direct orders to state courts. Congress has limited that power in the Anti-Injunction Act and there are exceptions built into those limitations. For example, a federal court may enjoin a state court when an injunction is necessary to the preservation of the federal court's jurisdiction.
Third, in Judge Moore's case, there is no action pending in the Alabama system. The only judicial proceeding is in federal court. As a consequence, direct attack would be an appeal in federal court. Any action in Alabama would be a collateral attack. (Collateral attack is not limited to habeas corpus, but can take place through a variety of procedural mechansims, including but not limited to an injunction from one court to another.)
Fourth, although the Supreme Court does have appellate jurisdiction over decisions of state court's involving an issue of federal law, the Supreme Court has no "supervisory jurisdiction" over the state courts. "Supervisory jurisdiction" is a term of art, and it imports the implication of administrative as opposed to strictly judicial power.
Fifth, it is absolutely correct that the lower federal courts (i.e., the United States District Courts and the United States Courts of Appeal) cannot hear appeals from state court. Furthermore, a somewhat arcane Rooker-Feldman doctrine precludes the lower federal courts from exercising original jurisdiction in a manner functionally equivalent to appellate jurisdiction.
Crimes Against Humanity Norman Geras's series of posts on Crimes Against Humanity now has five installments. Here is a guide to the five parts:
Less Moore Associated Press reports:
Halpin versus Coase Andrew Halpin (University of Southampton Faculty of Law) has posted a paper entitled Disproving the Coase Theorem? Here is the abstract:
Friday, August 22, 2003
Barnett on the Original Meaning of the Judicial Power Randy Barnett (Boston University) has posted The Original Meaning of the Judicial Power on SSRN. Here is the abstract:
More Moore News CNN reports:
Lessig on WIPO and Open Source Software Larry Lessig has a post on Microsoft's efforts to get the United States Government to ask WIPO to cancel a meeting on open source software. Here is a taste:
Ides on Habeas Allan Ides (Loyola Marymount) has a wonderful article up on SSRN. The title is Habeas Standards of Review under 28 U.S.C. Section 2254(d)(1): A Commentary on Statutory Text and Supreme Court Precedent, and it is forthcoming in the Washington & Lee Law Review. Here is the abstract:
Yu on Copyfighting Peter Yu (Michigan State University-DCL College of Law) posts The Escalating Copyright Wars (forthcoming in the Hofstra Law Review) on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Doris Weichselbaumer and Rudolf Winter-Ebmer (University of Linz - Department of Economics) post The Effects of Competition and Equal Treatment Laws on the Gender Wage Differential.
Conference Announcement: Supreme Court Preview
Thursday, August 21, 2003
Bertram on Honderich Controversy Chris Bertram blogs on philosopher Ted Honderich and his controversial book After the Terror.
More Moore Alabama Supreme Court Chief Justice Moore and the ten commandments generates more commentary, this time from Jack Balkin, here and here.
Two by Helfer Laurence Helfer (Loyola Marymount), whose work I greatly respect, has two new papers on SSRN that went up today:
The Blawg Review Courtesy of Greg Goelzhauser, I've just come across The Blawg Review, which posts on new issues of law reviews as they come out. The Legal Theorist thinks this pretty nifty.
Wednesday, August 20, 2003
The Soul and Politics Over at The Examined Life, John Christodoulou has a piece entitled Soul and Politics in Aristotle's Politics. This covers a lot of ground in a few paragraphs!
Josh Cherniss on Neo-Conservatism I recommend this post, scroll down for more. Also Matthew Yglesias here.
More Moore More the Judge Moore of Ten Commandments fame. Matthew Yglesias posts here--with lots of comments. And Jonathan S. Gradowski posts here. Jonathan notes that the Third Circuit has refused to reconsider its ruling that a 1920 ten-commandments plaque did not violate the establishment clause, setting up a potential circuit split with a decision in Moore's case:
Trends in Legal Scholarship Department: Law and Economics and the Role of the Legal Academy As I was preparing this morning's New Papers on the Net (below), I was struck by the fact that most of the new downloadable papers on SSRN (basically one day's worth) involved cross-disciplinary collaboration. Here is an observation based on my impressions formed after scanning the new uploads on SSRN almost every day for several months:
New Papers on the Net Here is the roundup:
Tuesday, August 19, 2003
Fleischer is Exuberant Victor Fleischer (UCLA and A Taxing Blog) posts The Rational Exuberance of Structuring Venture Capital Startups. Victor is a very welcome presence in the blogosphere. Here is the abstract of his article:
eroG .v hsuB on ebirT Laurence Tribe has posted his original Bush v. Gore piece on SSRN, making it easier to follow the ongoing debate online--that link and this one take you to Randy Barnett's pointers to the debate.. Click on the title: eroG .v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors. It is in print at 115 Harv. L. Rev. 170 (2001). Here is the abstract of Tribe's article:
Loquendum ut vulgus, sentiendum ut docti Here.
Manheim on the Recall Litigation Karl Manheim comments on the latest hearing in the recall litigation here. Here is a taste:
More Moore Chief Justice Moore of the Alabama Supreme Court lacks the virtue of justice--he is not disposed to follow the law when it conflicts with his ideology or the interests of his political career. But Moore is not the only Alabama official whose character is called into question by the ten-commandments monument imbroglio. Only a few Albama officials have been willing to condemn Moore's action, and one of the reasons is that he is very popular with Alabama voters. For more on Moore, surf on over to Jurist for this post. And there is even more Moore on How Appealling here and especially here.
New Papers on the Net Here is today's roundup:
Monday, August 18, 2003
20 Questions * 2 Over at How Appealling, Howard Bashman will have another installment in his monthly series of twenty questions up on September 2. The September interview (link here) will be with federal circuit judge William Curtis Bryson. Each of Howard's interviews has been fascinating! And over at Crescat Sententia, their weekly series of 20 questions for well-known bloggers continues. You'll have to follow this link to find how who!
Bernstein on Academic Book Publishing David Bernstein has an interesting and informative post on academic book publishing on the Conspiracy. The post raises the question whether legal academics should publish with academic presses. Bernstein muses:
New Papers on the Net Here is today's roundup:
New Issue of Law and Philosophy You can now access the July 2003 issue of Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy, edited by Michael Moore and Heidi Hurd. Here are the titles & links to pay-per-view downloading:
Emily Sherwin, Designing Judicial Review: A Comment on Schauer.
Alon Harel, Rights-Based Judicial Review: A Democratic Justification.
Larry Alexander, Is Judicial Review Democratic? A Comment on Harel.
Horacio Spector, Judicial Review, Rights, and Democracy.
Laura S. Underkuffler, Moral Rights, Judicial Review, and Democracy: A Response to Horacio Spector.
Mark Tushnet, Forms of Judicial Review as Expressions of Constitutional Patriotism.
Walter Sinnott-Armstrong, Weak and Strong Judicial Review.
Leiter Reports on Major Law School Faculty Moves On the Leiter Reports, Brian has the annual roundup of major law school faculty moves. Legal Theory Blog is especially interested in Yochai Benkler (NYU to Yale), Robert Post (U.C. Berkeley to Yale), Henry Hansmann (Yale to NYU), Chris Sanchirico (Virginia to Penn), Andrei Marmor (Hertzlia to USC) and Michael Perry (Wake Forest to Emory). These two moves are especially important to the world of jurisprudence, legal philosophy, and legal theory:
John Deigh goes to Texas from Northwestern University.
Sunday, August 17, 2003
Welcome to the Blogosphere To the Professor of Blogic!
Hasen on the Recall For a very good analysis of the California recall litigation, surf on over to Rick Hasen's Election Law Blog!
Equity I was just going through a pile of papers I had been reading, and I came across one by Noah Feldman that I thought I would mention. The paper is titled Equity in History, and it makes some very interesting and provacative points. The paper begins by quoting Aristotle's famous discussion of equity in the Nicomachean Ethics, and it goes on to trace the historical reception and development of Aristotle's idea. Here is a taste:
The second category includes those thinkers who deny that Aristotelian equity consists in some action that corrects rules or deviates from the normal practice of applying the law. These thinkers prefer to say that normal mechanisms of interpretation authorize the judge in a particular case to reach a legal outcome consistent with the true meaning of the law--the implicit intent of the law all along. On this view, the law in its truest sense, properly interpreted, does not prohibit a driver transporting a woman in labor from driving 75 mph. A judge or policeman who decided that the law did not apply to such a person would not be correcting the law but following it, by means of an act of interpretation. After all, Aristotle recommends deciding as the lawgiver “would himself decide if he were present,” and this is a plausible interpretive principle, especially if one assumes the lawgiver to have been reasonable. For the sake of convenience, call this second group, thinkers who understand equity as an interpretive act, “interpreters.” The terms “rectifiers” and “interpreters” are perhaps imprecise, and close analysis of the historical material complicates even these loose terms significantly. But that imprecision is an inevitable feature of the generalizing element of historical thinking, without which intellectual history would be little more than doxography.
Legal Theory, the journal The most recent issue of Legal Theory (Volume 9, Issue 1) includes the following articles:
Saturday, August 16, 2003
New Papers on the Net Here is today's roundup:
More on Strauss and the Straussians Brian Leiter (who has written about this in other fora) blogs on the Leo Strauss question here.
Friday, August 15, 2003
Leiter on Intelligent Design Brian Leiter has been blogging on the issue of teaching intelligent design as part of the biology curriculum in public schools, and in particular on the impact on biology textbooks. As a consequence this petition is being circuweblated. How's that for immediate impact?
Oman on Audi Nate Oman has a nice post responding to some of Robert Audi's work on the role of religion in politics. Read the full post, but here is a tiny snack--a hypo that forms part of Oman's argument:
More Moore Get more on Judge Moore (of Ten Commandments fame) at Southern Appeal here.
Update: And even more more Moore on Yin Blog.
Perry on Human Rights and the Courts Michael Perry's essay Protecting Human Rights in a Democracy: What Role for the Courts, 38 Wake Forest L. Rev. 635 (2003) is now available on Westlaw. Here is a taste:
Norman Geras on Crimes Against Humanity Surf on over to Normblog for this post on crimes against humanity--with more to come.
Hylton on Products Liability Kieth Hylton (Boston University) posts Preemption and Products Liability: A Positive Theory on SSRN. Here is the abstract:
Conference Announcement: Epistemological Contextualism
Thursday, August 14, 2003
Is Richard Posner a Marxist? Consider this argument from Scrivener's Error:
Gordon on Intellectual Property Wendy Gordon (Boston University) posts 1) Copyright as Tort Law's Mirror Image: 'Harms,' 'Benefits,' and the Uses and Limits of Analogy, and 2) Of Harms and Benefits: Torts, Restitution, and Intellectual Property (forthcoming in the McGeorge Law Review) on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Lee Sigelman and Eric Shiraev (George Washington University - Department of Political Science) post The Rational Attacker in Russia? Negative Campaigning in Russian Presidential Elections, forthcoming in The Journal of Politics.
Conference Announcement: Thinking Through A Collapsing World
The Rule of Lawyers Doug Bandow reviews The Rule of Lawyers: How the New Litigation Elite Threatens America’s Rule of Law, by Walter K. Olson (St. Martin’s Press, 352 pp., $25.95) on National Review Online. Here is a taste:
Wednesday, August 13, 2003
Wennberg on Barnett's Theory of Default Rules Mikko Wennberg (University of Turku - Department of Philosophy) has an interesting paper in 16 Canadian Journal of Law and Jurisprudence (2003) that discusses Randy Barnett's theory of default rules in contract law. Weinberg describes the paper as follows:
Judge Moore and the Rule of Law & The New York Times and the Importance of Proof Reading and Fact Checking The New York Times editorializes today on Alabama State Supreme Court Chief Justice Roy Moore, who has yet to comply with a federal district court order to remove the monument to the Ten Commandments that Moore had placed in the Alabama Supreme Court's courthouse:
--But who allowed the statement "the federal courts are its ultimate interpreter" to get into print. The United States Supreme Court is the ultimate interpreter of the United States Consititution, but lower federal courts and state courts are equally competent to interpret the United States Constitution. A federal trial court judge or federal appellate panel may not hear appeals from decisions of federal law in state court. (This is the arcane Rooker-Feldman doctrine.) It is true that Judge Moore is bound by the federal trial court injunction in the Ten Commandments monument case, but that is because he is a defendant (or the agent thereof). If the Alabama case had been filed in state rather than federal court, then the lower federal courts would (barring something very unusual) have no jurisdiction to consider whether the Alabama courts were correct on issues of federal law. Finally, in the quoted snipped there is a grammar problem: "courts" is plural and "interpreter" is singular.
Leiter on the Philosophical Gourmet Brian Leiter has a very illuminating post on the controversy over The Philosophical Gourmet on his new Blog, The Leiter Reports, Editorials, News, Updates.
McAdams & Nadler on the Expressive Theory of Compliance Richard McAdams (University of Illinois) and Janice Nadler (Northwestern) have posted A Third Model of Legal Compliance: Testing for Expressive Effects in a Hawk/Dove Game on SSRN. Here is their abstract:
New Papers on the Net Here is today's roundup:
Call for Papers: BSET
Conference on the Philosophy of Need
Tuesday, August 12, 2003
Do Humans Have Character Traits? A Comment on Situationalism, Moral Psychology, and Legal Theory
Why Legal Theorists Should Care Why should legal theorists care about situationalism? Let’s simply list a variety of reasons for caring about the situationalism/characterism debate in the context of law:
--Theories of Punishment. Explaining the normative basis for punishment is a central topic for legal theory. Theories of criminal punishment interact in various ways with moral psychology. If situationalism is true, there may well be implications for our views about when and why punishment is appropriate.
--Morality and General Jurisprudence. More generally, our views about morality will affect our views about the law in a variety of ways—direct and indirect. One way to divide up the universe of moral theories suggests that they can be categorized as belonging to the following three groups:
++Deontological Theories, such as Kant’s theory or Scanlon’s contractarianism, which hold that the rightness or wrongness (permissibility or impermissibility) of an action depends on its conformity with a set of moral rules.
++Aretaic Theories, such as Aristotle’s theory or contemporary virtue ethics, which make the cultivation of human excellence, rather than the performance of right-actions or the production of good consequences, the central them for moral theory.
How does this connect to the situationalist/characterist debate? Let me assert (with breathtaking oversimplification), that the correctness of situationalism (in a strong form) would be fatal to aretaic moral theories and damaging to deontological theories. I've only scratched the surface, but I hope I've said enough to convince you that legal theorists should care about Doris's book and the wider debate it represents.
Another line of research led to the identification of what is called the fundamental attribution error. This line of research investigates what we might call folk social psychology, i.e. what ordinary folks believed about the causes of human behavior. The research revealed that there is a strong tendency to attribute behavior to character traits rather than to situations.
Most legal theorists have at least a second-hand acquaintance with situationalism. One possible upshot of situationalism is that criminals are not "bad people;" rather, bad acts result when ordinary people are put in situations which elicit criminal behavior. Thus, situationalism provides support for consequentialist theories of punishment--crudely, left situationalists favor rehabilitation and right situationalists favor deterrence and incapacitation. But most situationalists would agree that neither retribution nor desert can provide the underlying justification for punishment. Of course, the broad sketch in this paragraph is vastly oversimplified.
Aretaic Moral Theory and Situationalism Aretaic moral theories are focused on human excellence; they are virtue-centered. They take the virtues as the primarly (but not the exlusive) locus of morality. We might use Aristotle's theory as an illustration, bearing in mind that philosophers debate the question whether Aristotle's theory is properly understood as aretaic in the sense that I have specified. Aristotle argued that eudaimonia (happiness) is the highest humanly achievable good, and that eudaimonia was constituted by a life lived in accord with the human excellence or virtues. Aristotle classified these in two groups. The moral virtues, such as courage, temperance, and good-temper (proates) were understood as connected with the emotions. Courage, for example, is related to fear. The courageous human is disposed to fear that is appropriate to the situation. Thus, courage can be defined as the mean between two vices (defects): cowardice (the disposition to too much fear for the situation) and rashness (the disposition to too little). The intellectual virtues were sophia (theoretical wisdom) and phronesis (practical wisdom). Obviously, in a single paragraph I haven't even come close to adequately summarizing Aristotle's view, but that will have to do for now.
How does situationalism pose a threat to aretaic moral theories? You, gentle reader, have undoubtedly run ahead of me by this point. Situationalism is really a family of views, with stronger and weaker forms. Let's define strong situationalism as the view that no humans have stable intersituational dispositional traits. If strong situationalism is true, then there is no such thing as a courageous human or a good-tempered human--the are no virtuous men or women. Likewise, it also follows from strong situationalism that there are no cowardly humans and no ill-tempered humans--there are no vicious women or men. If strong situationalism is true, then the "coward" is a social myth--not unlike the "witch." Of even greater interest to legal theory, there are no "bad guys" or "good guys" only bad situations and good situations. Virtue-centered moral theory would rest on a mistaken belief in virtues.
The Milgram Experiments I assume that almost everyone who reads Legal Theory Blog will be familiar with Milgram's famous experiments. Here is a brief description:
Assessing Situationalism Does the social psychology research on situationalism pose a threat to the view that human beings have character traits? This is obviously a large question. My aim here is simply to point towards some relevant considerations. Let's begin with the way the ordinary people think about character.
Problems with the Research There are, however, a variety of problems with the research cited in support of situationalism. Here are a few:
--Ambiguous Notion of Character Trait. In order to determine whether or not there are character traits, we would need to know what a charcter trait is. Aristotle, for example, has a theory of psychology of the virtues--which he theorizes are dispositions with respect to morally neutral emotions, such as fear. Much of the research that Doris investigates, however, simply plucks supposed character traits out of thin air. "Honesty," for example, is the character trait investigated by one prominent line of research, but Aristotle's theory of the virtues would not include "honesty" as a virtue--because it is not a mean with respect to an emotion.
--Children as Subjects. Some of the most interesting experiments that seem to show a lack of intersituational character traits were performed on children, but some theories of character development would not predict that children would have developed consistent characters.
--Information Impoverished Experimental Designs With respect to the fundamental attribution error, there is another, particularly interesting, problem with the research. Not unexpectedly, many of the FAE experiments are simple, one-shot, situations. You are asked to rate the skill of basketball players after seeing them play once, and with little information provided about the situational variables.
Let me be clear. This very brief discussion is hardly adequate in any way. I certainly don't want you to be convinced on the basis of what I say here that situationalism is wrong. My goal is very modest. I only want to convey a sense of the issues.
The Fundamental Attribution Error Again This brings me back to common sense and folk psychology. Does the "fundamental attribution error" really undermine our folk psychological belief in character traits? I can't do this question justice here, but I do have a strong hunch. I've read both primary and secondary accounds of much of the fundamental attribution error research. Most of the experiments involve situations in which the experimental subjects are given very little information about a situation, and then show a tendancy to attribute behavioral differences to character (or other traits of the subjects) rather than to situational variables. But our beliefs about human character were not formed in circumstances like thse. Our beliefs about character are formed in informationally rich environments in which we observe the same individuals and thier situations for hours, days, weeks, months, and years.
One experiment cited in favor of the fundamental attribution error illustrates the danger of overgeneralizing from this research. In this experiment, basketball players performed in two different situations--low light and normal light. Experimental subjects attributed the differences in performance to the quality of the players rather than the situation. This was an error. But from that error, should we draw the conclusion that differences in basketball performance between players can be explained by situational variables rather than by differences in player skills? Obviously not. Both situation and skill have explanatory roles. Indeed, situation and skill interact to produce player performance in basketball. But the fact that experimental subjects sometimes fail to understand the importance of a particular situational variable (lighting conditions) tells us almost nothing about the question whether basketball players have different ability levels that explain differences in their performance. Indeed, real basketball games are played under conditions that are carefully designed to eliminate most situational variables associated with playing conditions. Not all, of course. The home court advantage is part of the game, and I suspect that any knowledgable fan would be able to identify the influence of this variable. (It's pretty obvious in the statistics.)
Are there differences in basketball preformance that are caused by traits rather than situations? Of course! A randomly selected team of high school players will lose to a randomly selected team of NBA players almost 100% of the time, and this result will hold under a variety of situations, so long as both teams have an adequate incentive to win the game. (If you don't believe this hypo, how about a randomly selected team of law professors?) The NBA players are better. Their skills, abilities, and conditioning explain why they play better than the randomly selected high school players. Situational variables do almost none of the explanatory work. And this is true, even thought a cleverly designed experiment can elicit the so-called "fundamental attribution error" with respect to basketball performance. Likewise, the fact that the fundamental attribution error can be elicited with respect to character traits does not show that character traits do not exist.
Links and Resources
Rosalind Hursthouse, On Virtue Ethics.
Virtue Ethics: A Critical Reader (edited by Roger Statman).
How Should One Live?: Essays on the Virtues (edited by Roger Crisp).
Virtue Ethics (Oxford Reading in Philosophy) (edited by Roger Crisp & Michael Slote).
S.J. Burrow, Review of Doris.
Gilbert Harman, "Moral Philosophy Meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error."
Gilbert Harman, "No Character or Personality."
More on Hamilton Surf on over to Three Years of Hell for Anthony Rickey's critique of Hamilton's Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do. My post from yesterday on the same topic is here.
Tribe on Bush v. Gore Laurence Tribe (Harvard) has posted two papers relating to Bush v. Gore on SSRN. The first is titled The Unbearable Wrongness of Bush v. Gore. Here is the abstract:
Monday, August 11, 2003
Yoo and Prakash on the Origins of Judicial Review John Yoo (U.C. Berkely) and Saikrishna Prakash (University of San Diego) have posted The Origins of Judicial Review (forthcoming in the University of Chicago Law Review) on SSRN. Here is the abstract:
Novak on Religion and Judicial Selection Robert Novak has a column on the role of religion in the judicial selection process over at Townhall.com. Here is a taste:
Copynorms and Deterrence
Introduction Marci Hamilton has a thoughtful piece on Findlaw entitled Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do. Here is an excerpt:
File Sharing and Shoplifting I am not so sure that Hamilton is right when she argues that the music industry should sue college students for illegal music downloading. Her argument depends on the proposition that the RIAA's campaign of civil litigation against file sharing will have a substantial deterrence effect. She supports that argument with an analogy between shoplifting and music downloading. Here is the crucial passage:
Copynorms But the norms against unauthorized copying of music have broken down, or maybe they never existed in the first place. Again, why? One source of the breakdown is the manifest legality of similar copying. After the Supreme Court's decision in the Betamax case, most lawyers and certainly most lay people believe that copying television programs for personal use is legal. The Audio Home Recording Act includes a provision that makes analogy copying of music recordings virtually legal; you cannot be sued for making an analog compilation tape of copyrighted music.
And the average music downloader understands that if you shoplift or steal a CD, you deprive the owner of the use of the CD. But copying an MP3 files does not have the same effect. Economists would describe this difference using the concept of rival versus nonrival consumption. The social norm against theft of tangible property is supported by widespread understanding of the purpose of law's against theft. But the general public does not seem to have a similar grasp of the underlying rationale for copyright laws.
Can deterrence alone do the trick? Society would be hard put to invest enough resources in shoplifting prosecutions if ordinary, normally law-abiding citizens calculated the expected utilities of shoplifting in light of the likelihood of getting caught. As experience with alcohol and drug prohibition makes abundantly clear, deterrence is neither sufficient for the alteration of behavior nor the creation of social norms--where ordinary citizens do not regard the law itself as a reason for refraining from the prohibited conduct. (Things would be different in a police state.) Oh, and by the way, I think Hamilton is completely out of touch if she thinks that thrills are a significant motivating factor for any significant number of music downloaders.
The RIAA's Litigation Campaign and Deterrence The RIAA plans to bring hundreds of lawsuits against those who post large numbers of MP3 files for downloading. Will 500 lawsuits create a realistic threat of prosecution for 50 million users of file sharing programs? Assuming perfect information, the risk of prosecution is about one in one-hundred thousand. A far lower risk than that of being prosecuted for marijuana usage or underage drinking. Moreover, those who share only a few dozen files or download but do not share are likely to know that their chance of being caught is much less than one in one-hundred thousand. Indeed, their risk chance of being named as a civil defendant is functionally zero. Their risk of being named as a criminal defendant is actually zero.
Backlash The RIAA's decision to file hundreds of lawsuits against those who share MP3 files is not likely to have a substantial deterrent effect, but it may have other effects. In particular, it may well create further animosity towards the music industry--especially if the accompanying public relations campaign is poorly handled. And such hostility may prevent rather than enhance the emergence of copynorms. Read Hamilton's interesting piece!
Recall Resources Interest in the California recall is sure to increase now that Arnold has entered the race. Although the legal theorist is not sure this interest is healthy, I do want to call your attention to two important resources. The first is the amazing Election Law Blog by Professor Rick Hasen, the real thing when it comes to expertise on election law. The second is a blog called California Insider by Sacramento Bee reporter/columnist Daniel Weintraub, who is the real thing when it comes to expertise on California politics. Is there a legal theory angle on the recall? Honestly, I don't think there is. I can see some interesting arguments about the question as to what standard a voter should adopt for recall as a matter of political morality. One is inclined to think that the standard should be higher than simply, "I prefer the candidate likely to be selected in the recall election." But my, ill-informed, opinion is that almost everyone who votes for recall will, in fact, be adopting a much higher standard.
Horwitz on Freedom of Speech Paul Horwitz (University of San Diego) has posted Free Speech As Risk Analysis: Heuristics, Biases, and Institutions in the First Amendment (forthcoming Temple Law Review) on SSRN. Here is the abstract:
Oversimplified Brad DeLong (whose blog I much admire) posts the following:
Poison Pills Law students are likely to be especially interested in this hypothetical posed by Will Baude. Follow the links for lot's of fun.
Terrorism for Humanity? I have probably just been out of the loop, but I only recently discovered the controversy concerning Ted Honderich's forthcoming book on terrorism. Honderich is arguing for the morality of Palestinian terrorism--a position that is sure to be controversial. Here is a lecture version of its thesis. I see the issues surrounding Israel and the Palestinians as terribly difficulty, and hardly feel qualified to render any sort of opinion. But I find Honderich's lecture quite odd. Does anyone else find his writing terribly disjointed and unclear, especially given his reputation as a philosopher?
Strnad on the Deflationary Effects of the Income Tax The supersmart James (Jeff) Strnad (Stanford) has uploaded a paper entitled Deflation and the Income Tax to SSRN. Here is the abstract:
Sunday, August 10, 2003
Drezner Has Moved You can now find Daniel Drezner's blog here.
Blogger Archive Bug Legal Theory Blog seems to have been afflicted with a severe case of the Blogger archive bug. The archives seem to have completely disappeared, and this means that links to specific posts no longer function. Hopefully this will be cleared up soon.
Yoo on the War Power John Yoo (U.C. Berkeley) has posted a paper entitled War and the Constitutional Text (forthcoming University of Chicago Law Review) on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Noel Cox (Auckland University of Technology - Faculty of Business) posts The Acquisition of Sovereignty by Quasi-States: The Case of the Order of Malta, forthcoming in the Mountbatten Journal of Legal Studies and The Laws of War and NATO Attacks on Yugoslavia, forthcoming in the Chicago-Kent Journal of International and Comparative Law.
Saturday, August 09, 2003
Loss of Citizenship as a Criminal Penalty The Curmudgeonly Clerk has a very thoughtful post on this topic.
Welcome to the Blogosphere Brian Leiter (University of Texas) has a new blog, entitled The Leiter Reports, Editorials, News, Updates. This is sure to be good.
New Paper by Orin Kerr Once (and future?) conspirator Orin Kerr has a new paper on SSRN. The title is A User's Guide to the Stored Communications Act - And a Legislator's Guide to Amending It. Here is the abstract:
This Article will present a user's guide to the SCA. My main goal is to explain in relatively simple terms the structure and text of the Act so that legislators, courts, academics, and students can understand how it works - and in some cases, how it doesn't work. I hope to explain the basic nuts and bolts of the statute and show that the statute works reasonably effectively, although certainly not perfectly. My second goal is to show how Congress needs to amend the SCA. I recommend three ways that Congress should rethink the SCA to better protect the privacy of stored Internet communications, clarify its protections, and update the statute for the present. Specifically, I argue that Congress should raise the threshold the government must satisfy to compel the contents of certain Internet communications; that it should simplify the statute dramatically by eliminating the confusing categories of "electronic communication service" and "remote computing service," and eliminating redundant text; and that it should restructure the remedies scheme for violations of the statute.
New Papers on the Net Here is today's roundup:
Brian Cheffins (Faculty of Law, University of Cambridge) posts Mergers and the Evolution of Patterns of Corporate Ownership and Control: The British Experience.
David Duff (Faculty of Law, University of Toronto) posts Tax Policy and Global Warming.
Friday, August 08, 2003
Cooper on Originalism Jeff Cooper has a very thoughtful post on originalism. Here is an excerpt:
That may be the result of structural constraints more than anything else. Appellate judges, with their heavy caseloads, are poorly positioned to perform serious historical work. Supreme Court justices, with their lighter workloads, may be better situated. But the vast majority of them will still lack any serious training in history as a discipline. It should therefore be no surprise when they produce lousy history.
And Cooper's point suggests another one. Originalism is potentially quite radical. Assume that a series of transformative appointments gave us a thoroughly originalist Supreme Court in just a few years. Assume further that this Court believed that original meaning trumped settled historical practice (e.g. longstanding constitutional interpretations by the political branches) and precedent (e.g. constitutional interpretations by former Courts). This hopelessly general and conclusory, but I think an originalist court would be forced to work a revolutionary restructuring of the American institutions. Much of the federal government would have to go--falling to the original and narrow understanding of federal power and separation of powers. Much of the individual rights jurisprudence upon which American's have come to rely would be swept away, although a new and different jurisprudence might well take its place.
The fact that originalism is hard and radical does not mean it is wrong. But these points raise an interesting and important question--one that in my mind has been neglected by legal theorists: How should the transition to originalism be accomplished? That is, if you are an originalist, what story do you tell about the path to originalism? I don't think originalist scholars can say: "We will just take it one case at a time." Because it won't happen one case at a time. If originalism ever really gets going as the dominate constitutional methodology, it may start as a trickle of cases, but it won't take long for that trickle to become a flood--assuming, of course, that stare decisis does not play a constraining role. The precondition for originalism becoming dominate is an originalist majority or supermajority on the Supreme Court. Until that precondition is satisfied, originalism cannot really take off, but once it is satisfied, originalist precedent will begin to accumulate very quickly. The constitutional landscape can change radically in only a few years--think about the five year period from 1937-1942.
Enough ranting, read Cooper's fine post and then follow his links to more good stuff.
Sentencing & Integrity Eric Muller of Is That Legal posts on the Ashcroft plan to monitor judicial compliance with the sentencing guidelines, and links to this story. This story will inevitably be discussed from a simplified, political perspective, e.g. criminals versus society, judges versus the administration, but I think there is a very interesting problem of legal theory that lurks behind the story, and that problem concerns "integrity." Why are judges upset by Ashcroft's move? One of the reasons is that the sentencing guidelines create a problem of intrapersonal integrity. Precisely because the guidelines are rules, they will inevitably break down in particular cases. The guidelines will require judges to sentence defendant A to more years than defendant B, when apprehension of the particulars of their cases make it clear that A deserves a much lighter sentence than B--based on quality of the actions, intentions, and effects of the A and B and their respective actions. As a matter of intrapersonal integrity, this is a bitter pill to swallow. There is, however, a flip side to the coin. Giving judges discretion may allow them to act consistently with respect to the sentences that they hand out, but it creates a different kind of inconsistency--inconsistency across different judges. If judges are given substantial discretion in sentencing, defendants A and B's fate will inevitably be determined to a large extent by the judge who is selected in the case-assignment lottery. This creates a problem of interpersonal integrity or more aptly, political integrity As a society, we act arbitrarily and not on the basis of principle, when we sentence on the basis of a lottery. And there is one more dimension to this issue that involves legal theory. The problem of integrity would persist even if all the judges were committed legal formalists, but this problem is exacerbated by legal realist judges. If the judges treat the law as a mere instrument, then the sentences given to criminal defendants will depend, perhaps in large part, on the political orientation of the judge to whom the defendant's case is assigned. Simplifying grossly, liberal judges will be more lenient and conservative judges more harsh--depending, of course, on the offence.
Thursday, August 07, 2003
Pryor Update, Version 2.0 My post entitled Catholic Doctrine and the Obligations of Judges in Abortion Cases: A Comment on the Pryor Nomination is only one of several reactions to Hugh Hewitt's Weekly Standard column The Catholic Test. On HughHewitt.com, Hewitt responds to his critics: "The only defense of the anti-Catholic bigotry of Senate Democrats opposing William Pryor is invective, and so there has been plenty of invective spewing out from the usual suspects," referring to Legal Theory Blog, among others. Hewitt also characterizes his opponents as "the frenzied left."
Today, Hewitt has another column in the Weekly Standard, The Catholic Test, Part 2. And here is a taste:
Or is it that all nominee's who believe Roe was wrongly decided that are being excluded?
Or is it all nominees who believe Roe can and should be circumvented by lower-court judges?
Or all nominees who have opposed Roe with strong and harsh rhetoric (as Pryor allegedly has)?
Or something else?
--Outside the Beltway.
Update: Hewitt emails and indicates that he had not intended to lump me with the "frenzied left." Whew! That was a close call!
And don't forget, check out this very thoughtful analysis of the moral obligations of a Catholic judge on legal theory annex.
Dryzek and List on the Relationship between Public Choice Theory & Deliberative Democracy Courtesy of Political Theory Daily Review, John S. Dryzek (Australian National University) and Christian List (Oxford) have a paper entitled Social Choice Theory and Deliberative Democracy: A Reconciliation. Here is the abstract:
(ii) If deliberation induces preference structuration – narrowing the domain of actual preference profiles to a domain in which the Arrow and Gibbard-Satterthwaite problems do not apply – (hypothesis 2), then both cycling and strategic manipulation become less of a threat in deliberation, and relaxation of condition (U) provides acceptable escape-routes from Arrow’s theorem and from the Gibbard-Satterthwaite theorem, compatible with all other conditions of these theorems.
(iii) If deliberation helps uncover or create the tacit issue-dimensions that ‘cause’ a lack of preference structuration, and induce greater preference structuration in each separate dimension (hypothesis 3), then dimension-specific aggregation in accordance with all of the conditions of Arrow’s theorem or the Gibbard-Satterthwaite theorem (except condition (U)) becomes possible, and one of the following solutions to the overall decision problem may become available: subdividing the decision, lexicographic hierarchies of dimensions, logrolling, or demonstrating the nature of the problem and creatively crafting new alternatives.
(iv) If deliberation can produce agreement on what the set of relevant alternatives is (hypothesis 4), then agenda manipulation becomes less of a threat, and relaxation of condition (I) provides an acceptable escape-route from Arrow’s theorem, compatible with all other conditions of the theorem.
(v) If deliberation can produce agreement on an interpersonally comparable evaluation variable for assessing individual interests and a decision principle for aggregating individual interests into a collective outcome (hypothesis 5), then a solution to Arrow’s problem that is consistent with all of Arrow’s conditions becomes available for a range of institutionally soluble collective allocation or distribution problems.
Hylton on Law and the Future of Organized Labor Keith Hylton (Boston University) has a working paper on SSRN entitled Law and the Future of Organized Labor in America. Here is the abstract:
Wednesday, August 06, 2003
Lyons on Corrective Justice & Equality of Opportunity The distinguished legal philosopher David Lyons (Boston University) has posted Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow on SSRN. Here is the abstract:
Schauer on Legal Transitions The articulate, intelligent, and prolific Fred Schauer (Harvard, Kennedy School) has posted a paper entitled Legal Development and the Problem of Systemic Transition on SSRN. Here is the abstract:
More on Catholic Doctrine & Judicial Obligation I received a very articulate and nuanced response to my post entitled Catholic Doctrine and the Obligations of Judges in Abortion Cases from an anonymous reader, who has some tentative thoughts on the moral obligations of judges in abortion cases from a Catholic perspective.
Weatherall on Copynorms
Kim Weatherall has a very good post on copynorms. Here is a taste:
Second-Order Slippery Slopes My post, What's Wrong with Bills of Attainder, responded to this post, over at Antirealist. I made some pretty conventional arguments--that a blanket ban on bills of attainder serves rule of law values and prevented abuses of power. Antirealist has a long and nuanced response that covers quite a bit of ground. Let me focus on one, fascinating, argument:
Second, the case of bills of attainder is relevantly different that the case of the second-order slippery slope. Why? In the case of bills of attainder, there is reason to believe that a general rule is necessary to prevent abuse. For familiar reasons, we worry that legislatures will compromise liberty and the rule of law for partisan reasons. Thus, we worry that a labor parliament might pass a bill of attainder to attack a prominent former conservative politician (e.g. Archer, the original subject of Antirealist's post), but not pass such a bill respecting a similarly situated former labour politician. Even if this would not work a serious injustice in one case, once the mechanism is available, legislatures are ill suited to determine whether this dangerous tool may be used safely in the case at hand. Bills of attainder are always risky, because they place decision-making authority regarding the punishment of a particular individual in the hands of an institution that, by institutional design, is not equipped with the appropriate safeguards.
Third, there is, so far as I can see, no similar reason to worry about the second-order slippery slope as a general phenomenon. Quite the contrary. Although political actors (legislatures, executives) may be tempted to act on an ad hoc basis to maximize their own power and freedom of action, it does not seem plausible that they will go around imagining illusory slippery slopes in order to establish rules that limit their power.
Fourth, it is not clear that the second-order slippery slope leads to pernicious results. My original argument for a rule against bills of attainder was that it would enhance the rule of law. Antirealist argues that this creates a second-order slippery slope, upon which we would slide to a possible future state of the world in which many more decisions are made on the basis of rules rather than case-by-case reasoning. But the rule of law is, in general, a good thing. Whereas, I provided a fairly specific argument as to why the slippery slope that results from case-by-case evaluation of bills of attainder ends in an undesirable place, Antirealist provides no such argument for the second-order slippery slope.
Fifth, the key to avoiding fallacious reasoning when making slippery-slope arguments is to provide a mechanism: explain why the slope is slippery. I've provided the mechanism in the case of bills of attainder, but Antirealist has not met this burden with respect to the second-order slippery slope.
Tuesday, August 05, 2003
Riles on Law's Failures Annelise Riles (Cornell University) has posted Law's Failures: Means and Ends on SSRN. Here is the very interesting abstract:
New Papers on the Net Here is today's roundup:
Ernie Englander (George Washington University - Department of Strategic Management & Public Policy) and Allen Kaufman (University of New Hampshire - Whittemore School of Business and Economics) post Executive Compensation, Political Economy, and Managerial Control: The Transformation of Managerial Incentive Structures and Ideology, 1950-2000.
David Sappington (University of Florida - Department of Economics) and J. Gregory Sidak (American Enterprise Institute) post Incentives for Anticompetitive Behavior by Public Enterprises, forthcoming in the Review of Industrial Organization.
Jens Dammann (Max Planck Institute for Intellectual Property, Competition and Tax Law) posts The U.S. Concept of Granting Corporations Free Choice among State Corporate Law Regimes as a Model for the European Community.
Brian Cheffins (Faculty of Law, University of Cambridge) posts Mergers and the Evolution of Patterns of Corporate Ownership and Control: The British Experience.
Brian Hall (Harvard University - Negotiations, Organizations and Markets Unit) posts Six Challenges in Designing Equity-Based Pay.
Catholic Doctrine and the Obligations of Judges in Abortion Cases: A Comment on the Pryor Nomination Over at the Weekly Standard, Hugh Hewitt has an essay entitled The Catholic Test, Hewitt actually has some nice discussion of the history of the Constitutional prohibition on religious tests, but in the case of the Pryor nomination, one important question is whether a religious test has been imposed. Several commentators on both the right and the left have argued that opposition to Pryor is based on his views about abortion and in particular about Roe v. Wade and not on his Catholicism per se. How does Hewitt respond?
Second, however, this fact is not irrelevant. Hewitt tacitly concedes this in the quoted passage, when he says that the "fact of discrimination is not in the motive of the offender but the effect upon the offended." The tacit concession here is that the Catholic identity of those opposed to Pryor is relevant to the question whether the motive behind the opposition is anti-Catholic animus. And as Hewitt tacitly concedes, the circumstances make it quite unlikely that anti-Catholic animus is a motive. But Hewitt muddies the water, when he compares the statements by Democratic catholic Senators to "some of my best friends are Jewish," a statement which does frequently reveal unconscious or concealed anti-Semitism. Either Hewitt is a bit confused, or he wants to have his cake (anti-Catholic animus) and eat it too (the real question is effect). In his op/ed, Hewitt urged his readers to follow a link to a statement by Archbishop Charles Chaput of Denver, which clearly endorses the "anti-Catholic animus" view.
Third, Hewitt has a point when he focuses on effect. If a particular litmus test for judicial nominees has an exclusionary effect with respect to a religious group, that effect should be taken into account when a Senator makes the decision whether to impose the test. However, we should not lose sight of the fact that Republican rhetoric on this issue has taken advantage of the association between the "No Catholics need apply" message (e.g. the television ads) and anti-Catholic animus. It was not "laughable and pathetic" for Democratic Catholic Senators to react strongly to the "Catholics need not apply" television ads and charges of anti-Catholic bias in exactly the way they did. Hewitt's column blurs this point, and, in my opinion, comes very close to deliberate and irresponsible distortion of the issue.
Fourth, there is, however, a real question whether a litmus test on abortion is appropriate as a matter of political morality. This is not an easy question, and the answer to this question depends on the nature of the test imposed. There is a range of possibilities:
--Belief that Abortion Should Not Be Lawful. This belief comes closer to being relevant to judicial selection. If you are a realist, and believe that judges vote their ideologies and should vote their ideologies, then it follows that a nominee's belief that abortion should not be lawful is likely to affect the way that the nominee votes in abortion cases. On the other hand, if you are a legal formalist, and believe that judges both can and should decide cases on the basis of the law and not their own ideological convictions, then it would not be appropriate to impose a litmus test for judges based on their beliefs about the question whether abortion should be legal.
--Belief that Abortion Is a Grievous Evil and that Judges Have a Duty to Resist or Nullify Laws that Permit Abortion. Unless you agree with it, this belief should disqualify a nominee from a judicial office. There are, of course, laws that are so evil that judges should resist them by extralegal means, but the belief that abortion laws are of this sort is not a mainstream view in contemporary American politics. The majority (vast majority?) of Americans who oppose Roe v. Wade believe that it should be changed by legal and not by extralegal means.
Sixth, therefore, the question becomes, is Democratic opposition to Pryor based on legitimate concerns, either about his beliefs or his character. And here, I am really not quite sure. Because the debate over Pryor, abortion, and Catholicism has been characterized by more heat than light. Discussion has become emotional and angry rather than conciliatory. Positions have become simplified rather than nuanced.
Seventh, how do these considerations apply to Pryor. I am not in a good position to supply an answer to this question, because I have not done a careful, unbiased assessment of Pryor's record and public statements. My impression is that Pryor has publically affirmed belief that Roe v. Wade is wrong, but has expressed a willingness to follow Roe as an appellate court judge bound by the doctrine of vertical stare decisis.
Eighth, we should distinguish two questions. First, how do these considerations bear on any nominee who accepts the teachings of the Catholic Church on abortion. Second, this is a different question than the question how the same considerations bear on Catholic nominees per se. Not all Catholic nominees accept all of the teachings of the Church. The official line is that Catholics are obligated in conscience to try to accept the teachings of the Church, but, if in conscience, a Catholic cannot accept a particular teaching, this does not mean that the individual is obigated to perform an official act of renunciation and it does not impose upon the Church an obligation to excommunicate the individual.
Ninth, Catholic doctrine is clear on two points, abortion is wrong and laws permitting abortion are wrong. But what about the crucial question: what should a judge who accepts Catholic doctrine do if called upon to decide a case involving the right to abortion? Here is the relevant passage from Evangelium vitae, authored by John Paul II:
Eleventh, but what about the case in which the positive law establishes a right to abortion and a Catholic judge would or might be required by the positive law to affirm that right in a particular case. There is, I believe, an important distinction between direct participation in abortion (electing one, performing one, or ordering one) and conduct which allows others to perform abortions. Judges who affirm a right to abortion in a particular case do not directly participate in abortion. The first passage of Evangelium vitae quoted above is addressed to direct participation in abortion. The more directly relevant passage is the second passage, and in particular, the following: "law which violates an innocent person's natural right to life is unjust and, as such, is not valid as a law." This suggests that a Catholic judge may not regard Roe v. Wade as a valid law. But what are the consequences?
Another possibility, more realistic, I think is that such a judge should disqualify herself in cases involving abortion, but as a practical matter, this also has severe problems. Until the judge sits on the case, she will not know what the precise issues are and what the positive law requires. So Catholic judges would be required to recuse themselves from all cases involving abortion.
Yet another possibility is that Catholic judges would consider themselves as permitted to distort the law and the facts to reach an anti-abortion outcome. I do not believe that Catholic doctrine either requires or permits such deceptive practices.
And a final possibility is that a Catholic judge might view Roe v. Wade as contrary to natural law and hence as invalid, but nonetheless follow Roe v. Wade on the ground that the good from full participation by Catholic judges in the legal system outweighs the evil of following an unjust decision--given that abstention from decision in such cases cannot change the outcomes.
Twelfth, my analysis of Evangelium vitae is tentative--to say the least. I would welcome comments from readers, and especially any pointers to scholarly discussions of the issue that take Evangelium vitae seriously in the context of judges who must decide whether to follow positive law establishing a right to abortion.
Finally, I think that these issues should be put on the table. In particular, it is right and proper for opponents of Pryor to ask him whether he accepts the Church's teaching that laws permitting abortion are unjust and hence are "invalid," and, if he accepts this teaching, to ask further what consequences he believes this teaching has for him in his role as judge. There are those who believe that these matters should be left off the table. But beliefs regarding the the conditions for the validity of law are not matters of personal morality, and they deserve open discussion. Whether that discussion should take place in a Senate hearing is a different matter. If the questions are raised in that forum, they should be raised on their merits without reference to particular religious denominations or texts.
Monday, August 04, 2003
RIAA Bashing? One symptom of the dysfunctional debate over filesharing is the exaggerated rhetoric and demonization found on both sides of the debate. For criticism of the copyleft from the copyright, check out this post on BALASUBRAMANIA'S MANIA.
Copynorms: Survey Research
I've been bloggin recently on Copynorms. The Pew Internet and American Life Project has a new report entitled Music Downloading, File-sharing and Copyright: A Pew Internet Project Data Memo. Their research strongly suggests that the prevailing copynorms are very weak indeed. Here is an excerpt:
Profile of Steven Levitt Just in case you missed it, here is a link to the New York Times Sunday magazine profile of University of Chicago economist Steven Levitt. A taste:
Here, Here! For Jane Galt (Asymmetrical Information), who writes:
What's Wrong with Bills of Attainder? . . . is the question asked over at Antirealist in the context of proposals to punish Jeffrey Archer thought the use of a bill of attainder to deprive him of his peerage:
Second, as is frequently the case, one can argue that a single violation of the rule of law, considered in isolation, will do little harm, but may do good. But this line of reasoning is inconsistent with the rule of law, the realization of which requires that we adhere to the rule of law values as a rule and not on the basis of ad hoc judgments about particular cases.
Third, one reason for viewing the rule of law as a rule rather than a factor to be considered on a case-by-case basis is the problem of slippery slopes. If you think of slippery slope arguments as fallacious, I urge you to read Eugene Volokh's important work on this topic--go here for html and here for pdf.
Fourth and finally, two wrongs don't make a right. The fact that Archer's peerage may itself be unjust or illegitimate--because all such titles are suspect, doesn't justify a bill of attainder. Rather, it would normally justify a prospective law that ends titles of nobility.
20 Questions Redux There is a new 20 Questions feature in the blogosphere--this one from Crescat Sententia. Borrowing a terrific idea from Howard Bashman's How Appealing, this series poses the interrogatories to bloggers. The first set was served on Daniel Drezner.
Burdens & Science Elihu Gerson at Technical Work has a very interesting post on the role of burdens of proof in science. Here is a taste:
Interview with Walzer IMPRINTS: A JOURNAL OF ANALYTICAL SOCIALISM has an an interview with Michael Walzer in the most recent issue. I urge you to take a look at this very thoughtful, interview which ranges of a wide range of topics, from the Iraq and Afghan wars to Israel/Palestine to contemporary political philosophy. Here is a taste:
20 Questions Surf on over to How Appealling for Howard Bashman's monthly twenty questions feature. This month's interview is with 11th Circuit judge Gerald Bard Tjoflat.
New Papers on the Net Here is today's roundup:
Sunday, August 03, 2003
Plain Meaning I've been planning a post on "textualism" and statutory interpretation, but in the meantime, catch this Connecticut statute:
Intellectual Property and Indigenous Knowledge Here are two recent articles on this very interesting topic, both just up on Westlaw:
There are parallels in the WAI 262 claim to debates that have ranged in other countries, including the United States, about the privatization of intellectual property. In the U.S. copyright context, for instance, fierce debates are occurring about whether control by central government is appropriate and useful, given the opportunities afforded by technological self-help and private law mechanisms, such as contract. At the same time, immunization of intellectual property law from democratic processes is also occurring as a result of the increasing internationalization of intellectual property law. One of the tasks for the Tribunal may be to decide whether, even in a constitutional framework that is structured in part around the kawanatanga/te tino rangatiratanga divide, it is appropriate to remove control of important aspects of cultural policy development from the scrutiny of central government.
Call for Papers: Deliberation, Desires, and Emotions: A Debate among Medieval and Contemporary Philosophers
Saturday, August 02, 2003
Vic Fleisher on Terror Futures Over at the marvelous Tax Policy Blog, Vic Fleischer has a nice post on the terrorism futures market. Forgive me for the following, unsupported & unreasoned opinion: the market was a good idea and the "heads will roll reaction" is political pandering of the very worst sort. Off my chest!
Call for Papers: Unassumable Responsibility
Zywicki on the Rule of Law Todd J. Zywicki's essay, The Rule of Law, Freedom, and Prosperity, 10 Sup. Ct. Econ. Rev. 1 (2003) is newly available on Westlaw. Here is a taste:
Since Dicey restated the rule of law in the late Nineteenth Century in application to modern constitutional republics, there has been a general agreement as to the content and meaning of the rule of law. Dicey identified three fundamental characteristics of the rule of law as it emerged in Britain: (1) the supremacy of regular law as opposed to arbitrary power, i.e., the rule of law, not men; (2) equality before the law of all persons and classes, including governmental officials; and (3) the incorporation of constitutional law as a binding part of the ordinary law of the land. Although Dicey spoke primarily to the historical development of the rule of law in Britain, the core understanding of the rule of law that he articulated has remained remarkably stable since he wrote and has been readily generalizable to a universal understanding of the rule of law. There has been some updating and clarification, but he identified many of the values of the rule of law that comprise its core meaning today.
Friday, August 01, 2003
Introduction Can the music and film industries make a real dent in peer-to-peer filesharing by bringing lawsuits against individuals? I believe the answer is no, unless the publicity surrounding the lawsuits begins to change social norms--the informal web of beliefs about what constitutes acceptable behavior. Last month, I posted on Copynorms and Litigation Costs, observing that the key to this question is litigation costs. The average user of a peer-to-peer program such as KazaA simply cannot afford to go toe to toe with the RIAA in federal court. (It will be interesting to see if some judgment proof students decide to represent themselves pro per or manage to get assistance from a law-school based clinic.) Hence, you must settle with the RIAA--agreeing to pay a smallish judgment and stop using P2P to download or share copyrighted material. On the other hand, even the RIAA can only afford so many lawsuits. The RIAA will need to be very careful if it begins to file a massive number of suits. If the RIAA makes too many mistakes identifying defendants, they will begin to run into countersuits and Rule 11 motions. So the RIAA cannot automate the process of filing suits, they must actually investigate each complaint. It appears that they have been doing just that.
Hundreds of Lawsuits Today there is a story in the New York Times by Amy Harmon entitled Efforts to Stop Music Swapping Draw More Fire:
Three Scenarios My guess is that the RIAA is about to unleash a chaotic process, the effects of which are unpredictable, but here are some possibilities, in descending order of liklihood:
--The Backlash Scenario. Hundreds of lawsuits generate tons of bad publicity. The media decides to focus on the most sympathetic defendants. Imagine the teen mom who got herself into the big state university and now has to pay next year's tuition money to a record company, because the the boyfriend of the classmate with whom she shares a low-rent house used her computer and Earthlink account to share thousands of MP3 files. Key Senators and Represenatives hear from their kids about how the RIAA is harassing college students. Public opinion swings against the RIAA, which blows the public relations campaign with overkill. Over the objections of their PR consultants, the industry pushes the "Filesharing is theft" line way too hard. An industry lawyer testifies that "Filesharing is morally no different than robbing a liquor store." Parents who have been allowing their kids to engage in filesharing get angry. The RIAA quietly folds the litigation campaign, realizing that its continuation might actually result in legislation weakening the Digital Millenium Copyright Act.
--Norm Shift. Hundreds of lawsuits generate sympathetic publicity. The RIAA's publicity campaign strikes just the right note. Parents and teenagers have serious talks about the morality of filesharing. The media focuses on defendants with bad hair and an attitude to match. The RIAA cleverly targets one defendant at each of the nation's 500 largest colleges and universities, resulting in a wave of fear and remorse on college campuses. As a result, the social norms gradually change. It is no longer "cool" to file share. As filesharing begins to shift to public internet access points, it just becomes too much of a hassle. Apple's service becomes really popular, and the tide begins to turn.
The Mythology of the Big Record Company But, rightly or wrongly, the public is very suspicious of the story about incentives that justifies copyright--especially in the case of recorded music. The mythology is that copyright serves the interests of big music companies and not artists. I don't know enough about the music business to say whether the popular mythology has a basis in fact. My pro-market instincts bias me in favor of the view that the myth is a myth, but I am open to persuasion. But underneath the myth is a more fundamental problem. The case for intellectual property is complex and uncertain. (Boldrin and Levine's Intellectual Property Page gives links to various papers and discussion on the current controversy among economists as to whether intellectual property is justified.) Intellectual property rights interfere with decentralized decisionmaking concerning the efficient use or resources: bluntly, intellectual property rights interfere with property rights in tangible resources. I'm not saying I'm against intellectual property. Rather, my point is that the case for intellectual property is much less intuitive and far weaker than the case for property in tangible things.
Undermining Copynorms The intellectual property industry (especially the RIAA and MPAA) has successfully lobbied for particular pieces of legislation (the Copyright Term Extension Act and some provisions of the Digitial Millenium Copyright Act) which are rightly viewed as unjustifiable rent seeking--wealth transfer (some would even call it "theft") by legislation. When the copyright industry engages in conduct that violates basic norms of political morality, they lose the moral highground. And this is important because norm creation is a complicated business. One mechanism that operates in norm creation is the diffusion of elite opinion. Hence, it is important that the copyright industry has enraged elite opinion makers like Larry Lessig. When intellectual property lawyers call the legal academy, the "copyleft" and openly express hostility and contempt for serious scholarship on copyright policy, they may well be doing more damage than they imagine is possible to their own client's interests. And all of the old wounds are likely to be opened when the RIAA's litigation offensive begins, and draws the inevitable battle of the pundits. The litigation offensive would look a lot more palatable to opinion makers if it were accompanied by a dramatic act of compromise on the public domain front--industry endorsement of the Eric Eldred Act (perhaps with some modifications) would make all the difference in the world. What are the chances of that? Zero! And I would say "less than zero," but that would be an exaggeration.
The next six weeks should be very interesting.
Conference in honour of Michael Ayers Continues at Oxford At Wadham College, starting yesterday and continuing through tomorrow there is a gathering entitled Knowledge and Reality: A Conference on Philosophy and its History in honour of Michael Ayers. The speakers include Bill Brewer (Oxford), William Child (Oxford), Daniel Garber (Princeton), Hannah Ginsborg (Berkeley), Menno Lievers (Utrecht), Beatrice Longuenesse (Princeton), A.D.Smith (Essex), Barry Stroud (Berkeley), Edwin McCann (University of Southern California).
Issacharoff & Pildes on an Institutional Process Approach to Civil Liberties in Wartime Samuel Issacharoff (Columbia) and Richard Pildes (NYU) have uploaded Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime. Here is their abstract:
New Papers on the Net Here is today's roundup: