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.
Tuesday, September 30, 2003
Weatherall on Geographic Indicators & Trademark Kim Weatherall has a good post on geographic indicators and trademark law. Bologna, anyone? And while you're at it, scroll down for Weatherall's post on dilution theory.
McCarthy on Trademark Thomas McCarthy (University of San Francisco) presents Recent Developments in Trade Mark Law in the United States and Australia today at the University Sydney.
Zittrain on the Effect of RIAA Mistakes I just caught up with the first case in which the RIAA misidentified a defendant in their litigation offensive against P2P. Here is a link to the Boston Globe story, which quotes Jonathan Zittrain as follows:
Ayers on Do Not Call Lists Ian Ayers (Yale Law School) has a good op/ed in the New York Times, suggesting compensated listening as solution to the Do Not Call imbroglio.
ACLU v. RIAA Courtesy of Will Baude of Crescat Sententia, this news:
Smith Turns off the Lights Steven Smith (University of San Diego - School of Law) has posted Recovering (From) Enlightenment? on SSRN. Here is the abstract:
Wendel on Law and Disagreement W. Bradley Wendel (Washington and Lee Law School) has posted Civil Obedience (forthcoming Columbia Law Review) on SSRN. This paper promises to be very interesting. Here is the abstract:
Wright on Legal Responsibility Richard Wright (Illinois Institute of Technology - Chicago-Kent College of Law) posts The Grounds and Extent of Legal Responsibility (forthcoming in the San Diego Law Review, Vol. 41) on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Monday, September 29, 2003
Kontorovich on Liability Rules for Constitutional Rights at Chicago Eugene Kontorovich (George Mason) is workshopping Liability Rules for Constitutional Rights: The Case of Mass Detentions on at the University of Chicago today. It should be up on SSRN soon, but in the meantime, here is an abstract:
Moving Day & Interview with Hasen Crescat Sentential has a new URL: http://www.crescatsententia.org/. And in other sentential news, the crescat interview with election law superblogger Rick Hasen is now available at this link.
Belated Welcome to the Blogosphere . . . to IPKat (Jeremy Phillips and Ilanah Simon), a UK Intellectual Property blog. Check out the IPKant book of the Month.
Internet Governance: The IETF Michael Froomkin points to recent developments in Internet governance in this post on the Internet Engineering Task Force.
Weekend Wrap Up On Saturday, the Download of the Week was a new paper from Howard Gillman, and the Legal Theory Bookworm recommended a recent book by Farber and Sherry. On Sunday, the Legal Theory Lexicon's topic was Hypotheticals, and the Legal Theory Calendar previewed the talks, workshops, colloquia, and other events for the week.
Benhabib at Chicago At the University of Chicago Political Theory Workshop, Seyla Benhabib (Yale University) presents The Right to Have Rights, Discussant: Jacob Schiff. Here is a taste:
Schwarzschild on Direct Demoracy Maimon Schwarzschild (University of San Diego School of Law) has posted Voter Initiatives and American Federalism: Putting Direct Democracy in Its Place (forthcoming Journal of Contemporary Legal Issues) on SSRN. Don't miss this! Here is the abstract:
New from Alexander in ConComm Lawrence Alexander (University of San Diego School of Law) has psoted Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy (forthcoming in Constitutional Commentary). Here is the abstract:
Four from Zacharias Fred Zacharias (University of San Diego) has posted four new papers on SSRN:
Ramsey on the Executive War Power Michael Ramsey (University of San Diego School of Law) has posted Presidential Declarations of War (forthcoming UC Davis Law Review) on SSRN. Here is the abstract:
Fodor at Berkeley At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.
New Papers on the Net Here is today's roundup:
What Do Unions Do ... to Voting? Richard Freeman National Bureau of Economic Research (NBER)
Trade Wars: The Exaggerated Impact of Trade in Economic Debate Richard Freeman National Bureau of Economic Research (NBER)
The Role of Warnings in Regulation: Keeping Control with Less Punishment Karine Nyborg and Kjetil Telle Ragnar Frisch Centre for Economic Research - General and Statistics Norway - Research Department
Corporate Governance, Corporate Ownership, and the Role of Institutional Investors: A Global Perspective Stuart Gillan and Laura Starks University of Delaware - Center for Corporate Governance and University of Texas at Austin - Red McCombs School of Business
The X Tax in the World Economy David Bradford Princeton University, Woodrow Wilson School
Combating Corruptions in International Business Transactions Marco Celentani, Juan Ganuza and Jose Peydro-Alcalde Universidad Carlos III de Madrid - Department of Economics , Universitat Pompeu Fabra - Department of Business and Economics and INSEAD
Welcome to the Blogosphere . . . to Civil Procedure. My favorite course!
Sunday, September 28, 2003
Bainbridge on Conservatives in Academia Stephen Bainbridge (UCLA) has a very nice post entitled Conservatives in academia on his excellent blog ProfessorBainbridge.com. And check out this by Tom Smith and this by Michael Rappaport on The Right Coast.
Legal Theory Lexicon: Hypotheticals
What is a hypothetical? Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."
In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.
Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Alice agreed to pay Ben $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:
The Purposes of Hypotheticals Why do law professors use hypotheticals?
"Beware the hypothetical, my son. The laws that catch, the facts that bite." Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.
Lesson Number One: Fight the hypothetical, lose the war! The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.
Lesson Number Two: Watch for Slippery Slopes Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.
Lesson Number Three: Watch Out for Cold Rules and Hot Facts This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."
Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
(3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fare to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the dessert of law school.
Legal Theory Calendar
At U.C. Berekely, Jerry Fodor (Rutgers University) is the Townsend Visitor through October 2.
At the NYU Colloquium in Legal, Political and Social Philosophy (Dworkin and Nage), Sharon Street (NYU Philosophy) presents Excerpts from: Evolution and the Nature of Reasons
At UCLA's Legal Theory Workshop, Christopher Kutz (U.C. Berkeley) presents Justice in Reparation: The Problem of Land and the Value of Cheap Talk.
At the University of Michigan Law and Economics series, Mark Grady (George Mason) presents Liability Failure.
At the University of Texas, Constitutional Theory Seminar, Donald Horowitz (Duke) presents Secession as a Problem of Political and Constitutional Theory.
At Florida State, Richard Hynes (William & Mary) presents Bankruptcy's Role in Debt Relief.
At George Mason, Bart Wilson (ICES, George Mason University) presents Experimental Gasoline Markets.
At the University of Hertfordshire Centre for Normativity and Narrative (London), Anthony Rudd (St Olaf College, Minnesota & Hertfordshire) presents Narrative, Substance and Personal Identity. (From the London Fixtures List)
At the Society for Applied Philosophy in London, Jonathan Ree & Andrew Edgar (University of Wales, Cardiff) present Paths to Utopia: Philosophical Republics in the 21st Society, Chair: Richard Ashcroft (Imperial College, London). (From the London Fixtures List)
At the University of Texas Faculty Colloquium, Fionnuala Ni Aolain (University of Ulster) presents The Paradox of Transition in Conflicted Democracies.
Jennifer Mnookin is presenting at UCLA, but I don't have a title.
Saturday, September 27, 2003
Legal Theory Bookworm This week the legal theory bookworm recommends Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations by Daniel Farber (Minnesota and U.C. Berkeley) and Suzanna Sherry (Vanderbilt). (Another link here.) Farber and Sherry's book provides a wonderfully compact and elegant statement of the case for a pragmatic approach to constitutional interpretation. They begin with a list of eight propositions, which we could summarize as follows:
Desperately Seeking Certainty provides a wonderful tour of contemporary constitutional theory. Highly recommended!
Download of the Week The Download of the Week is Howard Gillman's Constitutional Law As Partisan Entrenchment. Gillman describes the aim of his paper as follows:
Lists Department Courtesy of the Leiter Reports, The Philosopher’s Annual has announced its list of the top ten philosophy articles of 2002. Here are three that are likely to be of some interest to legal theorists:
Friday, September 26, 2003
Preview of Coming Attractions Tomorrow, the Legal Theory Bookworm recommends a contemporary book of interest to legal theorists, and, as usual, the Download of the Week is unveiled. On Sunday, the Legal Theory Calendar previews colloquia, workshops, and conferences for next week, and the Legal Theory Lexicon does the unthinkable and provides a guide for law students on hypotheticals (everything you always wanted to know, but your professors were afraid to tell you).
Screpanti on Choice, Freedom, and Redistribution Ernesto Screpanti (Università degli Studi di Siena - Dipartimento di Economia Politica) has posted Choice Freedom and Redistribution Policies on SSRN. Here is the abstract:
Murphy at Texas Today at Brian Leiter's Law and Philosophy Program at the University of Texas, Mark Murphy (Philosophy, Georgetown University) participates in a 3-hour lunchtime workshop with LPP faculty and students on chapters of his book manuscript on Natural Law in Jurisprudence and Politics. He will also give a paper in the Philosophy Department in the afternoon on "Intention, Foresight, and Success."
Spaulding at the University of San Diego Norman Spaulding (U.C. Berkeley) presents Constitution as Counter-Monument: Federalism, Reconstruction and the Problem of Collective Memory.
Froomkin and Bradley on Virtual Worlds Michael Froomkin and Caroline Bradley have a paper entitled Virtual Worlds, Real Rules. Here a taste:
Miles on Threats to Law Library Autonomy At the SUNY Buffalo, Jim Milles presents Leaky Boundaries and the Decline of the Autonomous Law School Library. Horrors!
Foucault and the Gypsies Dave Cowan and Delia Lomax (University of Bristol - Department of Law and Heriot-Watt University - School of the Built Environment) have posted Policing Unauthorized Camping (forthcoming Journal of Law and Society on SSRN. Here is the abstract:
Hoffman and Wenger on Nullificatory Juries David Hoffman and Kaimipono Wenger (Cravath, Swaine & Moore LLP and Cravath, Swaine & Moore LLP) have posted Nullificatory Juries on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Nickle at the University of Arizona James Nickle (Arizona State) presents at the University of Arizona Philosophy Colloquium.
Wenar on the Value of Rights At Tulane's Philosophy Seminars, Leif Wenar (University of Sheffield) presents Speech and the Value of Rights.
Symposium: The Jury at a Crossroad Nancy Marder has edited a symposium entitled The Jury at a Crossroad: The American Experience for the Chicago-Kent Law Review. Here are the titles & authors, some with abstracts, and all with links to full paper:
Gillette on Direct Democracy and Debt Clayton Gillette (New York University Law School) has posted Direct Democracy and Debt (forthcoming Journal of Contemporary Legal Issues) on SSRN. Here is the abstract:
Conference on the Philosophy of Need Today through September 28, the Royal Institute of Philosopy is sponsoring at Conference on the Philosophy of Need at Durham. Here is a list of speakers:
Thursday, September 25, 2003
Filesharing, HTTP, P2P, and Copynorms Ed Felten points to a post by by Ernest Miller on Law Meme, titled Compulsory Licensing - Where Are the Defenders of HTTP?. If you are interested in IP theory, read this!
Must read! Surf on over to Crooked Timber for Chris Bertram's post on The genealogy of morals. Here is an excerpt from a New York Times story by Adam Cohen:
Froomkin on a little known Internet Crisis Let me again recommend Michael Froomkin's new blog (Discourse.net) to you. Try this post!
Would you sign the Constitution? Yesterday I posted on Sandy Levinson's recent (and negative) answer to this question on Findlaw. Surf on over to Discriminations for John Rosenberg's reaction. Here is a taste:
Gillman at Yale on Partisan Entrenchment At Yale's Legal Theory Workshop series, Howard Gillman (University of Southern California, Political Science) is presenting Constitutional Law As Partisan Entrenchment. Here is a taste:
Maranze at UCLA on Foucault and History At UCLA's legal history workshop, Michael Meranze (UCSD, History Department) presents Michel Foucault, the Death Penalty, and the Crisis of Historical Understanding.
Walker at Boston University At Boston University, David Walker presents The Tax Implications of Deferred Equity Compensation.
Stout at Princeton At Princeton's Political Philosophy Colloquium, Jeffrey Stout (Princeton University) presents The Ethics of Piety: A Reading of the Euthyphro.
Johnston at Michigan At the University of Michigan's Law and Economics Series, Jason Johnston (University of Pennsylvania) presents Signaling Corporate Social Responsibility: An Economic Analysis of the Role of Disclosure and Liability Rules in Influencing Market Incentives for Business Behavior.
Gomez on Hourly Billing At George Mason, Fernando Gomez (Universidad Pompeu Fabra) presents Cashing by the Hour: Why Large Law Firms use Hourly Fees.
Günther at NYU At NYU's Colloquium in Legal, Political and Social Philosophy (Nagel and Dworkin), the speaker is Klaus Günther (University of Frankfurt) and the paper is Legal Pluralism and the Universal Code of Legality: Globalisation as a Problem of Legal Theory. Here is a taste:
Koelman on Copyright Theory in Europe Kamiel Koelman (Free University of Amsterdam - Computer/Law Institute) has posted Copyright Law & Economics in the Copyright Directive: Is the Droit d'Auteur Passe? (forthcoming in the European Intellectual Property Review) on SSRN. Here is the abstract:
Call for Papers: Securing Privacy in the Internet Age
The Semaphoric Role of Laaw Robert Ahdieh (Emory Law School) has put Law's Signal: A Cueing Theory of Law in Market Transition, forthcoming Southern California Law Review, Vol. 77, No. 2, 2004, up on SSRN. Here is the abstract:
Parisi and Lick on Functional Law and Economics Francesco Parisi and Jonathan Klick (George Mason University School of Law and American Enterprise Institute (AEI)) have posted Functional Law and Economics: The Search for Value-Neutral Principles of Lawmaking on SSRN. Here is the abstract:
Wednesday, September 24, 2003
More on Ideological Voting in the Courts of Appeals Over the weekend, I blogged about Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, a recent paper by Cass Sunstein, David Schkade and Lisa Ellman (University of Chicago Law School , University of Texas at Austin - Management Science & Information Systems and University of Chicago - Law School). I was particularly struck by the following finding:
The Recall, Standards of Review and Transsubstantive Procedure For a review of the Ninth Circuit's recall decision and its implications, go here.
The Procedural Posture in the Recall Case Here is a step-by-step guide to the procedural posture of the recall case:
Standards of Review When an appellate court reviews a decision of a trial court judge, it does so through the lens or prism of a "standard of review." What is that? A standard of review defines the power relationship between the trial court and the appellate court. One some issues, the appellate court is required to be deferential to the fact finding or discretion of the trial judge. On other issues, the appellate court has all the power. Here is the conventional way that we carve up the world of standards of appellate review:
The Court's Reasoning on the Abuse of Discretion Issue So here is what the Ninth Circuit said about the standard of review:
But easier said than done. There are actually two, subtly different, issues that the trial court had to face (and hence the Ninth Circuit had to review):
Second, even if the plaintiffs don't have a slam dunk, do they have a shot at it? If so, then the plaintiffs should get a preliminary injunction, if (BIG IF), the plaintiffs would be badly hurt by delaying an injunction and the defendants (or third parties) would not suffer greatly.
On the second issue, the 11-judge panel agreed with the trial judge that the plaintiffs had a chance of prevailing on the merits. So then it comes down to the balance of hardships.
The Balance of Equities It is very important to distinguish final injunctions from preliminary injunctions. Why? Well, because a preliminary injunction is necessarily based on guess work and an intensely practical and particularized judgment about the best thing to do under difficult circumstances. Why difficult? Because either granting or denying preliminary injunctive relief is risky. If you grant a preliminary injunction and then the plaintiff loses at trial, you run the risking of really screwing things up. You call off the recall election, and then we hold a trial. If the plaintiff loses at trial, then the federal court looks pretty stupid. And of course, it isn't just "looking stupid." This would be a big-deal mistake. On the other hand, if you deny preliminary injunctive relief, and the plaintiff wins at trial, then that can be terrible. In the recall case, if you deny preliminary relief and then run the election, what do you do if the plaintiff wins at trial. Do you say, "Sorry Governor Bustamante (or whoever), we made a mistake. You aren't the Governor anymore. Sorry people of California, you have to vote again!"
In other words, the decision to grant or deny preliminary injunctive relief puts the judge between a rock and a hard place. To make this decision, the judge has to look at the big picture, and balance all of the good and evil that could result from the alternatives before her. The appellate court is not supposed to redo this balancing process on appeal. Rather, the appellate court is supposed to defer to the district court--so long as the district court did not abuse its discretion.
So this was they key to the recall decision. Did the trial court judge abuse his discretion when he concluded that the balance of equities did not decisively favor the plaintiffs, given that the plaintiff had a shot at the merits but lacked a slam dunk case. I've used the phrase "balance the equities" but the same thing is sometimes called "balance of hardship." Doug Kmiec commented on this point in a piece entitled Law, Resurrected!. Here's what Kmiec said:
Abuse of Discretion And the abuse of discretion standard is intended to be highly deferential. If the trial court judge had been corrupted, that would be abuse of discretion. If the trial court judge had decided on the basis of evidence not in the record, that would be abuse of discretion. If the trial court judge had acted beyond reason in a manner that suggested that we was not exercising discretion but was instead acting on the basis of a whim or passion, that would be abuse of discretion. But the record in the recall case simply does not reveal anything that would constitute abuse of discretion. Of course, many people think the trial judge got it wrong. Some people think he was really wrong--way off base. But strong disagreement does not equal abuse of discretion.
Should the Law Bend because of the Nature of the Case At this point, some readers may object: But this was not an ordinary case. This involved a recall election with monumental implications and important civil rights at stake. Shouldn't the appellate court be less deferential in such an important case? No. The whole point of having general rules of procedure is to create a neutral framework for the resolution of disputes. If judges bend the rules because of their perception of the importance of the case or the righteousness of the claims, then we open the door to the erosion of the rule of law. Legal theorists have a nice piece of jargon to describe the idea of neutral and general rules of procedure. They say that procedure should be "transsubstantive," that the rules of the game should transcend the particular teams that are playing the current match.
It seems to me that much of the criticism that I've heard of the 11-judge decision in the recall case really comes down to an objection to the fact that the en banc Court applied the ordinary rules that usually govern appellate review of a denial of injunctive relief to this extraordinary case. The critics are saying, "This case is too important for abuse-of-discretion review." And the critics have another, related, point. If you search hard, you will find cases in which the Ninth Circuit has bent the rules before. It is very easy to for an appellate court to find an error of law in a trial judges opinion and then use that error as the wedge for reversal--playing games with the significance of the error of law. So the critics can say, "The Ninth Circuit has circumvented the abuse of discretion rule in other cases. If it doesn't do the same thing here, the reason must be ideological bias."
But the unanimous decision joined by both liberals and conservatives, Democrats and Republicans, gives the lie to the criticism. The argument that judges should continue to disregard the law once they have started is sophistry. The remedy for injustice is justice. The cure of judicial lawlessness is judicial lawfulness.
We hope that judges have the virtue of justice. That is, we hope for judges who have the ability to decide on the basis of the law and put aside their ideological biases when they make decisions. This isn't easy. It is tempting to bend the law to achieve the results that you believe are right. For appellate judges, it is especially tempting to relax a deferential standard of appellate review when you would have made a different decision than the trial court. These temptations were powerfully present in the recall case. That the rule of law prevailed instead is a reason for celebration.
The Iron Cage of Constitutionality Check out Why I Did Not Sign the Constitution: With a Chance To Endorse It, I Had To Decline by Sandy Levinson (Texas) on Findlaw. Here is a taste:
Shaviro on a Progressive Consumption Tax Daniel Shaviro (New York University School of Law) has posted Replacing the Income Tax With a Progressive Consumption Tax on SSRN. Here is the abstract:
Baseball Labor Exports! Joanna Mehlhop Shepherd and George Shepherd (Clemson University - John E. Walker Department of Economics and Emory University School of Law) have posted U.S. Labor Market Regulation and the Export of Employment: Major League Baseball Replaces U.S. Players with Foreigners. Here is the abstract:
Kornhauser and Sager on Group Choice Lewis Kornhauser (NYU) and Lawrence Sager (Texas) have posted The Many as One: Integrity and Group Choice in Paradoxical Cases on SSRN. Here is the abstract:
Pessach of Copyright's Diversity Externalities Guy Pessach (Yale University Law School - Fellow, Information Society Project) has posted Copyright Law as a Silencing Restriction on Non-Infringing Materials - Unveiling the Real Scope of Copyright's Diversity Externalities, forthcoming Southern California Law Review, Vol. 76, on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Railways Reform and Electricity Reform in Russia, and the Role of the Ministry for Antimonopoly Policy Russell Pittman U.S. Department of Justice - Economic Analysis Group
Secrecy and Safety Andrew Daughety and Jennifer Reinganum Vanderbilt University - Department of Economics and Vanderbilt University - Department of Economics
Two New Measures of Bankruptcy Efficiency Riccardo Brogi and Paolo Santella Associazione Bancaria Italiana - Ufficio Valutazioni Economiche and Bank of Italy - Ufficio Diritto dell'Economia
Injunctions, Planning Enforcement and Human Rights Modern Law Review, Vol. 65, pp. 906-918, 2002 Ian Loveland City University London - Law School
Where are we now on Conditional Fees? - Or why this Emperor is Wearing Few, if any, Clothes Modern Law Review, Vol. 65, pp. 919-930, 2002 Michael Zander London School of Economics & Political Science (LSE) - Department of Law
Unions, Vicarious Liability and Quasi-Criminal Conduct Journal of Industrial Relations, Vol. 44, pp. 579-584, 2002 Max Spry Barrister-at-Law
Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results Justin Wolfers Stanford University - Graduate School of Business
Tuesday, September 23, 2003
En Banc Decision in Recall Case: The Recall Election Is Back On Updated with Excerpts from the Opinion and Links to Commenatary and Reporting ACLU will not seek certiorari. Press release here. For an extended analysis of the standard of review issue scroll up to the top of the blog or click here.
What Was the Legal Basis for the Decision? Essentially, the Ninth Circuit said two things. First, the plaintiffs had shown only a possibility of success on the merits--not a strong probability. Why? On the equal protection claim, the Court said that Bush v. Gore, although ambiguous, was distinguishable. On the Voting Rights Act claim, the Court said that the theory might be strong but the evidence did not establish "disparate impact" to a "strong likelihood." Second, the balance of equities did not favor a preliminary injunction, given only a possibility of success on the merits. Why not? Because delaying the recall would impair a significant interest of the voters of the State of California.
Excerpts from the Opinion Itself And here are some highlights of the opinion itself:
New: Waddling Thunder Reports on Tribe's Reaction.
Rick Hasen at Election Law Blog. Rick's comments are now essentially complete. Check back if you went to his blog while the comments were still in progress.
Howard Bashman here, here, and here.
New: Begging to Differ.
New: Beldar Blog.
Eastman on Ideology in the United States Courts of Appeals I blogged Sunday on Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, a recent paper by Cass Sunstein, David Schkade and Lisa Ellman (University of Chicago Law School , University of Texas at Austin - Management Science & Information Systems and University of Chicago - Law School). Over at Eastmania, Wayne Eastman has a post entitled Models of Judicial Ideology commenting on this very important paper.
Heinzerling at Florida State At Florida State, Lisa Heinzerling (Georgetown University Law Center) presents Priceless: Life, Health, Nature, and Other Stuff You Can't Buy. Chapter 4 Priceless: Of Knowing the Price of Everything and the Value of Nothing (with Frank Ackerman, forthcoming New Press, 2004).
Posner & Vermuele on Emergencies Eric Posner and Adrian Vermeule (University of Chicago Law School and University of Chicago Law School) have posted Accommodating Emergencies on SSRN. Here is the abstract:
Lund on Direct Democracy Nelson Lund (George Mason University School of Law) has posted Rousseau and Direct Democracy (with a Note on the Supreme Court's Term Limits Decision), forthcoming in the Journal of Contemporary Legal Issues, on SSRN. Here is the abstract:
Conference Announcement: Law, Ethics, and Affirmative Action
Monday, September 22, 2003
How Much Is Enough?
And check out this paper by Richard Arneson.
The Claim Preclusion Issue in the Recall Case Update: Go here for the latest developments.
There is, however, an exception to the rule that each party gets it own day in court. That exception goes under the somewhat mysterious label virtual representation. The idea would be that the plaintiffs in Common Cause I vitually represented the plaintiffs in Shelley.
The questioning on that issue focused on a prior en banc decision of the Ninth Circuit, Green v. City of Tucson, 255 F.3d 1086 (9th Cir. 2001). Green is not really on point, but it suggests a very narrow approach to virtual representation, and a little bit of investigation reveals that the prior Ninth Circuit case law on virtual representation is consonant with the narrow approach. For example, in U.S. v. Geophysical Corp. of Alaska, 732 F.2d 693 (1984), the Court said:
The New York Times on Copynorms I've been arguing that the RIAA's litigation offensive is not likely to cause a shift in copynorms, the informal social attitudes towards copyright violation that are crucial to a substantial change in the use of P2P programs to make unlawful copies of MP3 files. Courtesy of Crescat Sententia, the New York Times has a report regarding polling data that supports this conclusion:
For my prior posts on copynorms, start here.
Weekend Wrap Up Over the weekend, four regular features are posted on Legal Theory Blog. On Saturday, I posted the Download of the Week and the Legal Theory Bookworm. On Sunday, the Legal Theory Calendar and the Legal Theory Lexicon. Click on the links or scroll down for the posts.
Welcome to the Blogosphere To Michael Froomkin, a superstar of cyberlaw, who has begun the aptly named Dicourse.Net. Watch this one!
Richard Garnett at the University of San Diego At the University of San Diego Faculty Colloquium Series, Richard Garnett presents Religion, Division, and the First Amendment.
Ned Foley on Narrow Tailoring and Overbreadth Edward Foley (Ohio State University College of Law) has posted 'Narrow Tailoring' Is Not the Opposite of 'Overbreadth': Defending BCRA's Definition of 'Electioneering Communications' (forthcoming Election Law Journal, Vol. 2, No. 4, 2003) on SSRN. Here is the abstract:
Judge Wiley on LIberty and Insanity at UCLA At UCLA Law School's colloquium series, Judge John Wiley presents Liberty and Insanity.
New Papers on the Net Here is the roundup:
Arbitrage, Information Theft, and the Mistaken Attack On Insider Trading Chief Financial Officer U.S.A., John Thackray, ed. (Sterling Publications, London: 1988), pp. 114-115. Reprinted as 'Arbitrage, Information Theft, and Insider Trading,' in New Palgrave Dictionary of Money and Finance, (London, 1992). Michael Jensen Harvard Business School
Sunday, September 21, 2003
Legal Theory Lexicon: The Coase Theorem
This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up.
Coase said, "Let's assume zero transaction costs!" Okey dokey, what next! If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:
If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal.
One word of warning, the zero-transaction-costs assumption is just an assumption. In the real world, there are always (or almost always) transaction costs. Nonetheless, in some situations, transactions costs are sufficiently low so that the efficient bargain can be struck. In other situations, this is not the case. That's where the action is!
The Coase Theorem: A Study in Economic Epistemology by Gary North
Bill Edmundson's Handout on the Coase Theorem
Legal Theory Calendar
At UCLA Law School's colloquium series, Judge John Wiley presents Liberty and Insanity.
At NYU, their unusually uniformative web page tells us that Daniel Rubinfeld is doing something or the other.
At Yale's Legal Theory Workshop series, Howard Gillman (University of Southern California, Political Science) is presenting Constitutional Law As Partisan Entrenchment. Should be good!
At Princeton's Political Philosophy Colloquium, Jeffrey Stout (Princeton University) presents The Ethics of Piety: A Reading of the Euthyphro.
At the University of Michigan's Law and Economics Series, Jason Johnston (University of Pennsylvania) presents Signaling Corporate Social Responsibility: An Economic Analysis of the Role of Disclosure and Liability Rules in Influencing Market Incentives for Business Behavior
At UCLA's legal history workshop, Michael Meranze (UCSD, History Department) presents Michel Foucault, the Death Penalty, and the Crisis of Historical Understanding.
At George Mason, Fernando Gomez (Universidad Pompeu Fabra) presents Cashing by the Hour: Why Large Law Firms use Hourly Fees.
At Boston University, David Walker presents The Tax Implications of Deferred Equity Compensation.
At the SUNY Buffalo, Jim Milles presents Leaky Boundaries and the Decline of the Autonomous Law School Library. Horrors!
James Nickle (Arizona State) presents at the University of Arizona Philosophy Colloquium.
At Tulane's Philosophy Seminars, Leif Wenar (University of Sheffield) presents Speech and the Value of Rights.
Better Late than Never Department On September 18 at Colloquium in Legal, Political and Social Philosophy (Nagel and Dworkin), Lewis Kornhauser (NYU School of Law) presented Governance Structures, Legal Systems and the Concept of Law.
Is the Liberation of Iraq Contrary to Law? Sean Murphy (The George Washington University Law School) has posted Assessing the Legality of Invading Iraq (forthcoming Georgetown Law Journal, Vol. 92, No. 4, 2004) on SSRN. Here is the abstract:
Khanna on Corporate Crime Vikramaditya Khanna (Boston University School of Law) has posted Corporate Crime Legislation: A Political Economy Analysis on SSRN. Here is the abstract:
Saturday, September 20, 2003
More from Hasen Read election-law expert and superblogger Rick Hasen's most recent post on Bush v. Gore. Rick also weighs in on the connection between the recall case and the role of ideology in the selection of judges here. Here's what Rick says:
Driesen on Formalist Adjudication
Formalism and Consequences Driesen makes the following claim:
Formalism and Abstraction In another passage, Driesen asserts:
Formalism and Textualism And finally consider this claim:
Active Virtues The last section of Driesen's paper sketches a set of "active virtues." In particular, Driesen has three suggestions: (1) the judges in public law cases confine thier decision to briefed issues, (2) that they prefer narrow grounds to broader ones, and (3) that they cultivate humility. Only the third of these is a "virtue" in any distinctive sense of that word. One and two are really "rules of thumbs," and good ones in my opinion. "Humility" as a judicial virtue is an interesting topic. Readers with an interest in pursuing this line of thought should take a look at Suzanna Sherry's paper, "Judges of Character," which is available on Westlaw and at 38 Wake Forest L. Rev. 793 (2003).
Despite my quibbles, I found Driesen's paper quite interesting. Recommended.
Ideological Voting on the Court of Appeal Cass Sunstein, David Schkade and Lisa Ellman (University of Chicago Law School , University of Texas at Austin - Management Science & Information Systems and University of Chicago - Law School) have uploaded a paper titled Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation on SSRN. Here is the abstract:
The Legal Theory Bookworm The great debate in the history of legal theory is the debate between natural law and legal positivism. What the debate about is itself contested, but one convenient way of framing one of its central issues is to speak of a connection between law and morality. For natural law theorists, there is some deep or essential connection between law and justice. For legal positivists, either there is no such connection or it is merely contingent. This week the Legal Theory Bookworm recommends a contemporary classic, John Finnis's (Oxford and Notre Dame) Natural Law and Natural Rights. Finnis's book was published in 1980, and it has played a central role in contemporary debates about the nature of law. Before Finnis's book, classical natural law theory was in philosophical disrepute. The arguments mounted against it by Bentham, H.L.A. Hart, and others were taken to be decisive. Finnis's book decisively rearranged the argumentative landscape. After Finnis, no one could seriously think that natural law theory could only be held by those who philosophically naive or unsophisticated. Here is a passage from early in the book that will give you a flavor of Finnis's style:
Last week's Legal Theory Bookwormis here and the week before that, here.
Download of the Week This week’s Download of the Week is a paper by Nicole Garnett (Notre Dame) titled Property Regulation and the Public Order. I was at Garnett’s workshop on Friday—both the paper and its defense were very impressive. Here is taste:
Over the past two decades, however, the conventional wisdom about how to achieve those goals in American cities has been turned on its head. After years of attributing the problems of urban decay and disorder to intractable “root causes,” city officials now embrace policies that seek to eliminate these problems directly, rather than tackling their causes. A primary catalyst for this change was the articulation in 1982 of the “broken windows” hypothesis by George Kelling and James Q. Wilson. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory, and to a growing disillusionment with modern policing practices generally, has been a proliferation of policies focusing on public order, such as former-Mayor Rudolph Giuliani’s “quality of life” and “no-tolerance” programs, as well as ubiquitous “community policing” efforts.
Friday, September 19, 2003
More on Intellectual Property Theory Over at the Legal Theory Annex, David Ballantyne has an interesting analysis of the capacious water well.
Netanel at UCLA At UCLA, Neil Netanel (Texas) presents Copyright's Paradox: Property in Expression/Freedom of Expression.
Okin at BU At Boston University's philosophy colloquium, Susan Okin (Stanford University) presents Multiculturalism and Feminism: No Simple Question, No Simple Answers.
Nicole Garnett at the University of San Diego At USD today, Nicole Garnett (Notre Dame) presents Property Regulation and the Public Order.
Barnett at Texas At the University of Texas, Randy Barnett (Boston University) presents Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas.
ANU's Michael Smith at MIT At MIT, Michael Smith (Australian National University) presents External Reasons.
Southern Association of Ancient Philosophy at Oxford At Oxford's Somerville College, the Southern Association of Ancient Philosophy meets through September 20. The themes is conference is Pre-Platonic Philosophy, with special reference to Pre-Socratic Philosophy.
Scheffler at North Carolina At the University of North Carolina's philsophy Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.
Call for Papers: Conservatives and Federalism
Conference Announcement: Rawls and the Law
(2) contact: Darin Neely, Fordham's Assistant Director of Academic Programs. Email: email@example.com, Fax: (212) 636-6984
Scheffler at North Carolina At the University of North Carolina's Philosophy Colloquium series, Samuel Scheffler presents Doing and Allowing today.
Supreme Court Preview, Today at William and Mary
Speta at Georgetown At Georgetown's IP series, Jim Speta presents The Missing Piece of the 1996 Telecommunications Act: Accelerating Local Competition.
Kukathas at Arizona At the University of Arizona's philosophy colloquium series, Chandran Kukathas (Political Science, University of Utah) presents Exit and Gender.
Thursday, September 18, 2003
More on the Capacious Water Well Check out Matthew Morse here. My post was here.
Update: And a post entitled The ex ante-ex post distinction and scenarios from Elihu Gerson on Technical Work.
Patterson Review of Philosophical Foundations of Neuroscience Dennis Patterson (Rutgers, Law and Philosophy) has a review of M.R. Bennett and P.M.S.Hacker, Philosophical Foundations of Neuroscience, 2003, Blackwell Publishing, 480pp, $39.95 (pbk), ISBN 140510838X, just up on the excellent Notre Dame Philosophical Reviews. Access the review here. Here is a taste:
Barnett on the Police Power Randy Barnett (Boston University) has posted The Proper Scope of the Police Power (forthcoming in the Notre Dame Law Review) on SSRN. Here is the abstract:
Kornhauser at NYU On September 18 at the Colloquium in Legal, Political and Social Philosophy (Nagel and Dworkin), Lewis Kornhauser (NYU School of Law) presented Governance Structures, Legal Systems and the Concept of Law.
Moreteau at Boston University At Boston University, Olivier Moreteau (Université Jean Moulin Lyon 3 & Institut de droit comparé Edouard Lambert) presents Can English Become the Common Legal Language in Europe.
Lewisch at George Mason At George Mason, Peter Lewisch (University of Imadec School of Law) presents Relevant Markets, Market Power, and Price Controls under the New EU Telecom Directives: The Case of Mobile Telephony.
Beebee at ANU At RSSS (Australian National University) Helen Beebee (University of Manchester) presents Hume on Causation: Causal Experience, Projectivism, and Sceptical Realism
Kristen Adams at Florida State At Florida State, Kristen A. Adams (Stetson) presents Promise Enforcement: Can the Lessons of Hundertwasser and Rousseau Save Affordable Housing in the United States?.
Call for Papers: Beijing International Conference on Democracy
Call for Papers: Democracy and Social Justice
Marmour at UCLA Andrei Marmour (University of Southern Califironia) will be delivering The Rule of Law and its Limits to the Legal Workhsop at UCLA.
R-E-S-P-E-C-T Find out what it means to me R-E-S-P-E-C-T Take care , TCB.
with apologies to Aretha Franklin.
Kristeva Conference at Memphis Today through September 20, the Annual Spindel Conference at the University of Memphis is entitled Kristeva’s Ethical and Political Thought.
Wednesday, September 17, 2003
Medical Marijuana and the Powers of Congress
Introduction I am blogging from the Courtroom One of the United States Court of Appeal for the Ninth Circuit. It is 8:30 a.m. and the oral argument in United States v. Oakland Buyer’s Cooperatives, the medical-marijuana case is about to begin. Just two days after the decision in the recall case, it hard to forget that this is the Ninth Circuit, the largest and most controversial of the intermediate courts of appeal in the federal system. And the Ninth Circuit has quite a home. Few who work outside the specialized and arcane field of federal appellate lawyering know that this unobtrusive building near the Tenderloin district contains some of the most beautiful architecture in any public building in America. The interior of the Supreme Court actually pales in comparison with court room one, which is stunning—with marble columns sculpture, mosaics, and stained glass skylights. Being in the room brings back a flood of memories from my time as a Law Clerk to Judge William Norris, who retired from the Ninth Circuit a few years ago. Enough reverie, on to the argument!
This case raises the question whether the federal government has the power to criminalize the noncommercial distribution of marijuana for medical use. The clerk asks those in attendance to stand. The three-judge panel enters the room. The three judge panel includes Stephen Reinhardt, famous (or infamous) as the most liberal judge on the most liberal federal court in the United States. Also on the panel are Mary Schroeder (a very distinguished judge and the most senior member of the panel) and Barry Silverman.
Judge Schroeder calls the case. The lawyer for the appellants is Professor Randy Barnett (Boston University, and, of course, the Conspiracy). Barnett walks to the podium, and begins. He starts with an overview of the appellant’s contentions.
The Federalism Issue The appellant’s challenge to the federal criminalization of noncommercial distribution of medical marijuana rests of three entwined constitutional arguments. The first argument is based on the limits on Congress’s legislative power. The second is grounded in the notion of state sovereignty. And the third is rooted in the idea of individual liberty.
Congressional Power and State Sovereignty A bit of background is in order. The United States Constitution does not grant plenary legislative power to Congress. Instead, Congress is given a set of enumerated powers, including, in Article I, Section 8, the power to regulate commerce among the several states. A catch-all clause allows congress to do what is necessary and proper to carry out its enumerated power. What is regulation of interstate commerce? That is, of course, one of the great questions in the history of American constitutional law. Any meaningful answer to this question must be historical, taking in the movement of commerce-clause jurisprudence from McCulloch v. Maryland, the great opinion by Chief Justice John Marshall, through the Lochner, New Deal, and Warren Court eras.
Until the mid-1990s, the question as to whether the federal government had the power to criminalize noncommercial distribution of medical marijuana would have been considered to be theoretically interesting but practically settled. Why? Because the New Deal and Warren Court era cases were commonly read by scholars and lower federal courts to create plenary federal legislative power. That is, the assumption was that the Supreme Court had simply read the idea of limited and enumerated federal powers out of the constitution! Conservative legal scholars railed against this development, but as a practical matter, that’s the way it was, until . . .
The Revolution: Morrison and Lopez . . . until the United States Supreme Court’s decisions in Lopez and Morris In Lopez, the Supreme Court invalidated the Gun Free School Zones act; in Morrison, the Court struck down the Violence Against Women Act. In both cases, the Court said that contrary to scholarly opinion, the Commerce Clause had teeth. Lopez and Morrison are monumentally important decisions, but how far do they reach?
And that brings us to the Commerce Clause challenge to the federal prohibition on the distribution of medical marijuana. The appellant’s theory is simple. Congress cannot prohibit an activity that is noncommercial and entirely intrastate in nature. The government argues that Congress can do this, because of a New Deal era case, Wickard v. Filburn, in which the Supreme Court upheld the application of a New Deal statute that prohibited a farmer from growing wheat on his own land to feed to his own livestock. Why? Because the cumulative effect of on-farm consumed wheat on the national market for wheat was substantial. So Wickard allows Congress to regulate intrastate activity if the class of intrastate activity has a substantial cumulative effect on interstate commerce.
Back to Barnett’s argument. Oral argument is an art, not a science. Most lawyers waste oral argument, usually be sticking to their strongest arguments and evading the court’s questions. Barnett does not fall into that mistake. Instead, Barnett goes straight for the hardest question. Under Wickard it matters hugely how one defines the class of activity to be regulated. The larger the class the greater the effect on interstate commerce. The smaller the class, the lesser the effect. So Barnett’s task is to convince the court that the relevant class is noncommercial intrastate medical marijuana distribution and not all use and distribution of marijuana. This task is a difficult one, and class definition will determine the outcome of the issue. The government will argue that Congress gets to define the class, and therefore the relevant class is all marijuana traffic, interstate and intrastate for medical and nonmedical uses—if this is the class, then there is a significant effect on interstate commerce. Barnett must convince the Court to focus on noncommercial, intrastate traffic in medical marijuana—if this is the class, there is no substantial effect on interstate commerce. Barnett goes back and forth with Silverman and Shroeder on this issue, making some headway.
Barnett’s key argument is extremely clever. He argues that there are two alternatives that the Court should avoid. On the one hand, the Court should not allow the appellant to define a class that is trivially narrow, guaranteeing that the effect on commerce is insubstantial. On the other hand, the Court should not allow Congress to define the class. Why not? Because if Congress defines the class at its pleasure, then the more purely intrastate activity Congress reaches, the greater its power. So what should the Court do? Barnett’s position is gutsy and right. The Court must define the class itself, using common sense and practical judgment.
Liberty The second set of issues in this case concerns liberty and this argument gained new life because of the Supreme Court’s decision last term in Lawrence, the gay rights case in which Justice Kennedy’s opinion for the Court focused on the concept of constitutional liberty—the sphere of individual autonomy into which government power may not intrude. The appellant’s argument is that there is an individual liberty right to use medical marijuana to relieve pain.
Gerald Uelman (University of Santa Clara) (and the member of the O.J. defense team who came up with “If it does not fit, you must acquit.”) steps to the podium to argue that liberty issue. He starts well, by asking in a dramatic fashion, what interest justifies the federal government’s interference with an terminally ill cancer patient who uses marijuana to ease pain on her doctor’s advice. He quickly gets sidetracked, giving a convoluted explanation of the difference between heroin and morphine—going far from his core argument and on to territory that was simply not relevant to his own argument.
The panel seemed sympathetic to the liberty argument, but doubtful as to its viability in the Supreme Court. This same panel had ruled that there was an implied “medical necessity” defense, but that decision was reversed by the Supreme Court. Although Justice Thomas reserved the constitutional questions, Judge Shroeder seemed confused on this point. Possibly, as Chief Judge, she is distracted by the recall case!
The Government Judge Silverman asks whether Congress could prohibit the use of insulin. The government is forced to answer, “Yes, it could.” The government then goes off onto an irrelevant tangent—the FDA’s process for reclassifying drugs.
Now, the the class of activities becomes the focus of a question by Reinhardt. This is a very dramatic moment. “Why not look at intrastate, noncommercial activity?” Now, the government lawyer is absolutely flustered. He goes back to the medical necessity case, which involved a completely different issue—what the statute reaches, not the question asked, “what class is relevant to the application of Wickard v. Filburn?”. He gets back on track. He argues that the state cannot be allowed to carve out specific activities—but Reinhardt interrupts, and pointing out that the states have been more prevailing more and more on such issues. Reinhardt then goes back to the appellants definition of the class—noncommercial, intrastate medical marijuana use. “Why does that have an effect on interstate commerce.” Once again, the government lawyer is flustered. He tries to evade the question. He talks about a different question, running to the Morrison case. Reinhardt is relentless. The government retreats to the argument that the only relevant class is the class defined by Congress. Reinhardt pursues again, in McCoy a prior Ninth Circuit commerce-clause case, the Court looked at a class it defined, not the class defined by the statute. The government is unable to make a cogent argument that there would be an effect on commerce if the class is defined in the way the appellants wish.
The argument shifts to the question whether the distribution of medical marijuana is “commercial.” The government’s argument is that it is commercial, even though there is no fee, because users are encouraged to make donations. Reinhardt asks, “Is there any activity that does not involve money?” The government answers that the activity in Lopez, possession of a handgun, did not involve money. This is a fair answer.
The argument shifts back to the class argument. The government now falls into the Barnett’s trap. Barnett said that the court should avoid two extremes—either defining the class so narrowly that it encompasses only a trivial case, and avoiding the contrary mistake—allowing Congress to define the class so broadly that Congress is allowed to define its own power to regulate wholly intrastate activity. The government lawyer tries to argue that the two extremes are the only alternatives, but this argument actually sets up the appellants claim—that the Court itself must exercise common sense and practical judgment to define the relevant class.
Finally, the government returns to the liberty argument. The government relies on a prior Ninth Circuit decision holding that there is no liberty right to use laetrile—a bogus cancer drug. This is a reasonable argument. Of course, there is no question that marijuana is not like laetrile with respect to pain relief. In this sense, the governments argument actually reinforces the appellant’s argument—as long as the Court does not defer entirely to Congress’s judgment on the question whether there is a benefit. The government does not argue that Congress was right, but that it is Congress’s sole authority to find the facts.
Conclusion Well, it was a very interesting argument. On the law, my reading is that the key issue is the definition of the class for the purpose of determining whether there is a substantial effect on interstate commerce. On this issue, the argument was one sided. The government actually fell right into Barnett’s clever position, and so far as the dialectic of argument is concerned, the government lawyer actually did tremendous damage to his own case. But the dialectic of argument is not the whole story. This case also has a political dimensions, and a big part of that dimension is the drug-prohibition lobby and its tremendous power in Washington. How that might influence the case is not for me to say. Very interesting!
Post Script Rereading this post, I realize that it might convey an erroneous impression re the advoacy skills of the government lawyer--who was very skillful indeed and quite persuasive on many issues. My criticisms really go to the substance of the governments position and the failure of the government to adapt to the dialectic or argument--in real time under intense preasure from Judge Reinhardt's questions. The safe choice is simply to stick to your guns and hope for the best, and that is what the government did.
Zombies For a very serious philosophical discussion, surf here.
Cowen on the Case for Copyrights in Recorded Music Tyler Cowen has a nice post on the Conspiracy on the case for copyrights in recorded music. Here is the core of his argument:
Second, Tyler's post assumes that the only variable that would be affected by termination of copyright in sound recordings would be income, but that is clearly not the case. If recording revenues disappeared, it is rather unlikely that the practices of the music industry would remain the same. In particular, given current technology, it seems much more likely that many artists would use dramatically less costly recording and distribution techniques. (Very high quality recordings can be produced at astonishingly low costs for many genres of music.) The distribution end is particularly important. Today, if all musical copyright were abolished (in both sound recordings and musical compositions), distribution would likely to move to the Internet--which enables mass distribution at extremely low costs.
Royal Institute of Philosophy Lecture Series RIP Lecture Series for 2003-2004 is entitled Philosophy, Biology and Life. For details, go here.
Ferrell at Michigan At the University of Michigan's Law and Economics series Allen Ferrell (Harvard) presents Mandated Disclosures and Stock Returns: Evidence from the Over-the-Counter Market.
Literalism and Contextualism One of the recurrent debates in legal theory concerns textualism and intentionalism, the debate as to whether legal texts can be interpreted on the basis of the plain meaning of text or whether it is necessary to look to the context in which the text was writtent to determine the intentions of the authors. This debate is related to a long-running debate in the philosophy of language, which is sometimes framed as the debate between literalism and contextualism. For a very nice introduction to the philosophical debate, take a look at François Recanati, Literalism and Contextualism: Some Varieties, in Gerhard Preyer, Ed. Contextualism. Oxford University Press (2003). Here is a snippet:
Hughes on Database Protection Justin Hughes's article, How Extra-Copyright Protection of Databases Can Be Constitutional, 28 U. Dayton L. Rev. 159 (2002) has just become available on Westlaw. Here is a taste:
Defenestration in Contemporary Jurisprudence For the scoop, surf here.
Tuesday, September 16, 2003
More on IP Theory Over at Sapere Aude, Joshua Claybourn has a post entitled Intellectual Property Rights that extends the recent exchange started by Eugene Volokh here with some comments from me here, more from Volokh here and final reply from me here.
Schwarzschild on Direct Democracy At New York Law School, Maimon Schwarzschild presents Voter Initiatives and American Federalism: Putting Direct Democracy In Its Place. Here is a taste:
Ortiz at Washington & Lee Oops! Dan emails to tell me this was last year! That's the way the blog crumbles, I suppose.
Last year, at Washington and Lee, Daniel Ortiz (Virginia) present[ed] The Paradox of Mass Democracy. Better late than never!
Seidman at Georgetown At Georgetown, Mike Seidman does The Secret Life of the Political Question Doctrine.
Menu Federalism Roger D. Congleton, Andreas Kyriacou, Jordi Bacaria's A Theory of Menu Federalism: Decentralization by Political Agreement is now available on Constitutional Political Economy (subscription required). Here is the abstract:
Call for Papers: Kant and the Question of Community
Welcome to the Blogosphere . . . to Eastmania, authored by Wayne Eastman, who teaches law at the business school of Rutgers University, New Brunswick! This looks like it will be very interesting. Start here and work your way down!
Monday, September 15, 2003
Claim Preclusion and the Recall Case
Basics The doctrine of claim preclusion (or using the old-fashioned terminology res judicata) is a rule of procedure that prevents a plaintiff from litigating the same claim over and over again. In general, claim preclusion applies if: (1) the same claim as raised in a subsequent action was litigated in a prior action; (2) the parties are the same, or if different: (a) the new party is in privity with the old party, (b) the new party was adequately represented by the old party, or (c) the prior action involved a special remedial scheme (such as bankruptcy or probate); and (3) the prior action resulted in a final, valid judgment on the merits.
Are the claims in Shelley the same as in Common Cause I? The Ninth Circuit said no, but that was a clear error of law. Under federal law, claims are the same if they are based on the same transaction (the same nucleus of facts), even if the legal theories are different. In Common Cause I, there was a prospective challenge to all statewide elections based on the theory that using punch card ballots violates the equal protection clause. In Southwest, there is a prospective challenge to one statewide election, the recall, based on the same legal theory. The Common Cause I claim encompassed the Shelley claim. In fact, this is obvious. Frankly, the reasoning of the Ninth Circuit on this point is terrible--but this is not surprising. Many federal judges haven't a clue when it comes to difficult issues of claim or issue preclusion.
Are the parties the same? Or in the alternative is there privity, adequate representation, or a special remedial scheme? Some of the parties are the same, but the NAACP is a new and different party. The NAACP is probably not in privity with any of the Common Cause I plaintiffs--some preexisting contractual or status relationship is usually required for privity. Common Cause I did not involve a special remedial scheme. So the question narrows to one of "adequate representation." Simplifying, there are two routes to adequate representation. Route number one is a class action. Common Cause I was not a class action. Route number two is the doctrine of virtual representation. And that is the key issue in Southwest. "Virtual representation" is a very unusual doctrine. It binds a nonparty to a prior judgment, even though the prior action did not observe the formalities of a class action. That means that in the prior action the court was not notified that the parties and lawyers before it were representing others. In a class action, the judge must determine that the class representative is adequate. When the doctrine of virtual representation is invoked, the nonparty is bound without this safeguard. Although this is a very interesting, deep, and in my opinion, complicated issue, one thing is clear. The doctrine of virtual representation is bound to be controversial. And in fact, the federal courts are split with respect to the scope of this doctrine. Some view it narrowly, and some view it broadly.
This much is clear: Southwest is the kind of public law case, involving the rights of the citizenry at large that has sometimes formed the basis for the application of the virtual representation doctrine. And another thing, the representation in Southwest was undoubtedly adequate. The lawyers were superb, the parties were sophisticated, and the interests represented were congruent with those of the new parties in Southwest.
But that is not the end of the story. Not only is the virtual representation doctrine controversial, it has never been clearly endorsed by the United States Supreme Court. And in my opinion, the doctrine is particularly dicey in the context of a settlement, where the issues are never aired before a neutral tribunal.
Bottom line? This is a truly difficult issue. My own bias is against the virtual representation doctrine, but fine scholars whose opinion I highly respect take a different position. The Supreme Court has never endorsed the doctrine, but it has never definitively rejected it either.
Final valid judgment on the merits. There is no dispute about this. A consent judgment is a final judgment. This consent judgment was on the merits. So far as we know, there are no validity problems.
Conclusion There is a real live claim preclusion issue in Southwest. It is cert worthy. It is difficult as a matter of theory. My guess is that the Supreme Court would be disposed to rule against state's claim preclusion defense--if it were not for the political ramifications of the case. Those ramifications and the fact that a liberal panel of the Ninth Circuit ruled against the recall add another dimension to the issue. But the politics of this case are baroquely complex, and I am hardly qualified to venture an opinion.
Hasen on the Ninth Circuit Recall Case Election law superblogger Rick Hasen's preliminary analysis is now available here.
Water Wells and MP3 Files: The Economics of Intellectual Property
Introduction Eugene Volokh blogged recently on the case for intellectual property. His main focus was on incentives, and he made an eloquent and compelling case for intellectual property based on the notion that without exclusive rights, there might be insufficient incentives for authors to write, composers to compose, bands to record, and inventors to invent. But an IP skeptic might reply as follows:
Something bothered me about Volokh's intuition pump. It's not that I don't see the force of the incentives argument. It's that the capacious water well hypo didn't seem quite kosher. Hence my post in reply to Volokh, where I focused on the idea that the well is a club good--because consumption is nonrivalrous up to some threshold. Eugene and I exchanged a couple of emails, and I couldn't convince Eugene that I was right. This bothered me. On the one hand, I was quite sure I was on to something. On the other hand, Volokh is one of the brightest guys in all of legal academia. Clearly, I had more work to do. It was off to the library. (I live in the hills above UCLA, so normally I go to the Young research library, but with the state budget crisis, Young was closed and so I had to drive all the way to Cal State Northridge.)
So I read up on the economic theory of intellectual property law. I reread James Buchanan's original article about club goods and also investigated the differences between club goods and toll goods. And I thought long and hard about my failure to persuade Eugene. This post is the result!
The Nature of Intellectual Property: Public and Private Goods Let me begin with some basics. The usual story about the economics of intellectual property begins with the distinction between public and private goods. Here are the definitions:
How does this apply to intellectual property? A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a private good.
If this were the end of the story, Volokh would be right: the case for intellectual property would essentially be the same as the case for property in tangible things. But as you no doubt already have observed, intellectual property is not a pure private good. There were two criteria for a pure private good, rivalrousness and excludability. The law can create excludability for information, but what about rivalrousness? Consumption of information is normally nonrivalrous. If I copy an MP3 file, it doesn't affect your ability to do so. If I use some plans to produce a better mouse trap, it does not affect your ability to use a different copy of the plans to process the same information and make a mousetrap from the same design.
Clearly, we need some additional categories. How do we categorize goods that satisfy enforceability but not rivalrousness? And what about goods that are rivalrous but cannot be made excludable? Let's add two more kinds of goods to our classificatory scheme:
Table One: Public, Private, Common Pool, Toll, and Club Goods.
__________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________
Intellectual property law moves information from the public good to toll good. Legally enforceable intellectual property rights make information a toll good, because they create excludability but not rivalrousness. Copyright law gives me the power to exclude you from making copies of my writings, but it does not make consumption of the information (e.g. the syntactic content) rivalrous.
The Well Revisited: Stage One So now back to the case of the capacious well. Here is my worry. Eugene's argument seemed designed to get us to see that our intuitions about property in tangible resources should carry over to intellectual property. But as a general matter, property is tangible resources like water wells is thought to be a pure private good. Volokh, however, came up with an example where rivalrousness was not present, but our intuitions favoring property rights remained strong. In my prior post, I suggested that Volokh had misclassified the capacious well. I argued that it was a club good, because water wells, as a general rule are subject to crowding effects. Even if the water table was infinitely capacious, I argued, the well itself could become crowded if too many farmers tried to access it at the same time. Here is how Volokh responded in his most recent post:
But after thinking the problem through carefully, I realize that that my position is not vindicated by this technical defect in Volokh's argument. Because he can easily fix the capacity problem by stipulating that the well itself has sufficient capacity so that assuming the water were free and all of the farmers in the neighborhoods used the well simultaneously, there would still be excess capacity. If I tried to argue with Volokh about this, I would simply be fighting the hypothetical. When you fight the hypo, even if you win the battle, you lose the war. Volokh could simply switch to another particular case in which a tangible resource is a toll good, not a pure private good or a club good.
But I am still not satisfied with Volokh's argument. I am still convinced that Volokh is using capacious water well hypo to pump intuitions that are not trustworthy. Why? Because there is a real different between intellectual property and property in tangible things. What is that difference? And more to point: How does that difference survive Volokh's case of the capacious water well? My answer to these questions will move in three stages.
Three Ways of Looking at Property and Property Rights My hunch was that the intuitions about the case of the capacious water well should not carry over with the same force to the case for intellectual property rights in general. But what is the difference? There are actually three differences. Each is important in its own right, but the three in combination are quite powerful. So what are they?
Ways of Looking at Property Rules: (2) Ex Ante and Ex Post The second difference between the capacious water well and information is related to the first. When Volokh sets up the water-well example, he takes an ex post perspective. Looking back at this particular well, it turns out that it has excess capacity. But when we think about the question whether there should be intellectual property rights in information, we take an ex ante perspective. We are not looking backward at a particular work, and asking whether that work should be property. We are looking forward at copyright law and/or patent law in general. When we think about property rules (or any legal rules), it is important to distinguish the ex ante and ex post perspectives.
Ways of Looking at Property Rules: (3) Systemic and Particularized The third difference between the capacious water well and information is related to the second. When Volokh set up his hypothetical, he looked at a particular water well, but he used this particular example as an analogy for a general class of cases, e.g. all of intellectual property law. But when we look at particular cases, we need to be careful about drawing systemic conclusions. When we think about property rules, we need to be clear as to whether we are making a rule for a particular case or for a general category of cases.
The Well Revisited: Stage Two So, the capacious water well hypo pumps intuitions based on the accidental features of a particular case described from the ex post perspective. These intuitions are then applied to the necessary features of information as a resource and the ex ante and systemic question whether the law should protect intellectual property. Of course, the intuitions drawn from the well may still be valid. Part of what Volokh did with the capacious well hypo was to draw out intuitions about the necessity of incentives, i.e. incentives for the farmer to drill the well. As I stated in my previous post, that part of the argument is unproblematic. But Volokh wanted to get more out of the capacious well. In particular, he seemed to use our intuitions about the well to minimize the importance of the distinction between property in information and property in tangible resources.
But this intuition cannot be pumped from the well! Why not? Because our intuitions about the well are polluted by our knowledge of property in tangible things, from an ex ante, systemic perspective that considers their essential nature. That's a mouthful. So let's unpack it:
Second, from the ex post perspective the case is fixed, but from the ex ante perspective it becomes variable. If we look backwards at one well drilled by one farmer at one point in time, it looks like the well is a pure toll good. No rivalrousness! But if we take the ex ante perspective, then this is not so clear. How do we know, from the ex ante perspective, that the well will not, at some point in the future, become subject to crowding effects? Volokh can try to jury rig the hypo to make crowding effects unlikely, but unless he sacrifices realism, it will be difficult to guarantee no crowding effects over the very long run.
Third, from the systemic perspective, water wells are club goods and not pure toll goods. If we look not just at the particular capacious water well in Volokh's hypothetical, then it is clear that there are crowding effects. Not every water well is subject to crowding effects at every moment in time. Obviously! But if the legal rule were that water wells were treated as common pool goods (e.g. access was free), then on average there would be substantial crowding effects.
Comparing Apples with Apples So what happens if we compare apples with apples? That is, what if we compare the ex ante systemic case for property rights in information with the ex ante systemic case for property rights in water wells. Abracadabra! The intuitions that we pumped from the capacious water well disappear in a puff of smoke! Now, the case for property in water wells becomes much stronger than the corresponding case for property in information. Why? The incentive argument applies to both water wells and information, but crowding effects (the tragedy of the commons problem) applies only to water wells. We've come round in a circle to the point we started. Rivalrousness really makes a difference.
Comparing Oranges with Oranges We're not done. We can compare oranges with oranges. That is, we can compare two ex post, particularized cases, where we are allowed to vary the accidental properties of the good in question. Watch me carefully now! And here is where it gets really interesting. Once we do this, we learn something really important. Because now we can produce an example where rivalrousness really does make a difference. So now let's imagine a pair of water wells:
Case Two: In the second case, the farmer had sufficient incentive based on his own water needs to drill the well regardless of whether he can charge his neighbors for the use of the well, and the largest capacity well the farmer could drill is insufficient to meet the simultaneous demand of all his neighbors (but still sufficiently large to meet the needs of some neighbors).
Here is the payoff. We've learned that when we compare from the ex ante, systemic perspective, and focus on the essential characteristics of the good, rivalrousness matters. We've learned that when we compare from the ex post, particularized perspective, and focus on the accidental properties of the good, either rivalrousness or incentive effects can drop out. It just depends on the way that you set up the hypothetical. And from those two lessons, we have learned the source of my discomfort with Volokh's argument based on the capacious water well. The intuitions we pumped from the capacious well were not trustworthy as a guide to a larger question: "Is the case for property rights in information in some important sense different and weaker than the case for property rights in tangible resources?" The intuitions we pumped from the well suggested that the answer to this larger question was "no," but in fact, the answer is "yes."
Back to the Beginning: Are Incentives Necessary? So this brings us back to the beginning. The fact that the consumption of information is nonrivalrous may not make any practical difference, depending on incentive effects. The current regime of intellectual property law assumes that incentives are necessary, but that incentives alone justify weaker property rights in information than in tangible resources. Why do I say that? Because property rights in tangible resources are unlimited in time, but copyright and patent grants property rights only for limited terms. But this is just the assumption required to justify the status quo. There is a larger question--the question that prompted Volokh's first post. Is the current regime justified? Are even property rights that are limited in time required to given sufficient incentives for the creation of new information, e.g. new inventions, writings, music, sound recordings, and so forth. As I said in my prior post, I am convinced by the incentives argument. But not everyone is. There are several different lines of criticism. For an overview of the evidence (and lot’s of other relevant stuff), I suggest that you take a look at two entries in the Encylopedia of Law and Economics:
Copyright by Wendy J. Gordon and Robert G. Bone (Boston University)
And this brings us full circle, back to Eugene Volokh's original post, a marvelously lucid and persuasive summary of the case for intellectual property. In the end, I am not sure whether Volokh and I disagree about anything. I may have been reading too much into the capacious water well hypo. Volokh may have introduced the hypo for a very limited purpose--to show that the incentives justification for property can operate independently of the justification that depends on rivalrousness. On this point, Volokh and I are in complete agreement.
Behavioral Law and Economics Surf on on over to Corporation Law and Economics, for a very good post by Stephen Bainbridge. Here's a taste:
Republican Legal Theory Congratulations to Tim Sellers (University of Baltimore) on the publication of Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State by Palgrave. Here is an abstract:
From LTB Weekend Edition On Saturday, the Download of the Week presented my recommended paper from last week and the Legal Theory Bookworm introduced Julie Dickson's Evaluation and Legal Theory. On Sunday, the Legal Theory Lexicon (a feature aimed primarily at law students) discussed the ex ante/ex post distinction and the Legal Theory Calendar previewed this week's workshops, colloquia, lectures, and conferences in law and related disciplines.
Tung at Loyola Marymount At Loyola Law School of Loyola Marymount Unversity, Frederick Tung presents an internal workshop entitled Mixed Metaphors: The Disconnect Between U.S. Corporate Charter Competition and Issuer Choice in International Securities Regulation.
Geistfield at NYU At NYU's faculty workshop series, Mark Geistfeld is doing an internal workshop. Can anyone supply a title or link to the paper?
The Recall at UCLA At UCLA, Larry Levine (Democratic Campaign Consultant), Allan Hoffenblum (Republican Campaign Consultant), and Dan Lowenstein (UCLA) present The Politics of the Recall Election.
New Papers on the Net Here is today's roundup:
Conference Announcement: 10th Annual Interdisciplinary Conference on the Environment
Copynorms and Anonymity Whether the RIAA likes or not, the key to the problem of peer-to-peer (P2P) filesharing of copyrighted music is a shift in copynorms--the informal social attitudes towards copying of copyrighted material. So long as copying is socially acceptable, it seems unlikely that the RIAA's litigation offensive can suceed. On the one hand, even hundreds of lawsuits cannot create a significant deterrent effect. And on the other hand, to the extent that P2P users fear legal sanctions, they may well be driven to new P2P technologies that are costly or impossible for the RIAA to police. Saul Hansell of the New York Times reports Crackdown May Send Music Traders Into Software Underground. Here is an excerpt:
Sunday, September 14, 2003
Housewarming The Curmudgeonly Clerk has moved to new digs. Update your links to: http://www.curmudgeonlyclerk.com/weblog/.
Some musings on the difficulty of the question
Nonetheless, one might venture a guess or two about the candidates for immortality. I am going to give a rather ecumenical, interdisciplinary, translinguistic list, but, of course, my list will be biased (by my own training, language, and national origins) and incomplete.
Who from the twentieth century will students of legal theory read one hundred years from now, not just because they are of historical interest, but because they truly made an important contribution? Here are some possibilities:
Ryan Reviews Posner Alan Ryan reviews Richard Posner's Law, Pragmatism, and Democracy at the New York Times. Here is a taste:
Legal Theory Calendar
At UCLA, Larry Levine (Democratic Campaign Consultant), Allan Hoffenblum (Republican Campaign Consultant), and Dan Lowenstein (UCLA) present The Politics of the Recall Election.
At NYU's faculty workshop series, Mark Geistfeld presents. Title?
At New York Law School, Maimon Schwarzschild presents Voter Initiatives and American Federalism: Putting Direct Democracy In Its Place.
At Boston University, Olivier Moreteau (Université Jean Moulin Lyon 3 & Institut de droit comparé Edouard Lambert) presents Can English Become the Common Legal Language in Europe.
Andrei Marmour (University of Southern Califironia) will be delivering The Rule of Law and its Limits to the Legal Workhsop at UCLA.
At the University of Michigan's Law and Economics series Allen Ferrell (Harvard) presents Mandated Disclosures and Stock Returns: Evidence from the Over-the-Counter Market.
At Floriday State, Kristen A. Adams (Stetson) presents Promise Enforcement: Can the Lessons of Hundertwasser and Rousseau Save Affordable Housing in the United States?.
At George Mason, Peter Lewisch (University of Imadec School of Law) presents Relevant Markets, Market Power, and Price Controls under the New EU Telecom Directives: The Case of Mobile Telephony.
At RSSS (Australian National University) Helen Beebee (University of Manchester) presents Hume on Causation: Causal Experience, Projectivism, and Sceptical Realism
Today through September 20, the Annual Spindel Conference at the University of Memphis is entitled Kristeva’s Ethical and Political Thought.
At William and Mary, the Institute of Bill of Rights Law is hosting the sixteenth annual Supreme Court Preview, with a host of constitutional law luminaries.
At the University of North Carolina's philsophy Samuel Scheffler (Winston Distinguished Visitor) presents Doing and Allowing.
At UCLA, Neil Netanel (Texas) presents Copyright's Paradox: Property in Expression/Freedom of Expression.
At Georgetowns IP series, Jim Speta (Northwestern University School of Law) presents The Missing Piece of the 1996 Telecommunications Act: Accelerating Local Competition.
At Tulane's philosophy series, Sharon Lloyd (University of Southern California, Philosophy) presents Machiavelli at Our Table..
At Boston University's philosophy colloquium, Susan Okin (Stanford University) presents Multiculturalism and Feminism: No Simple Question, No Simple Answers.
At the University of Arizona's philosophy colloquium series, Chandran Kukathas (Political Science, University of Utah) presents Exit and Gender.
At Oxford's Somerville College, the Southern Association of Ancient Philosophy meets through September 20. The themes is conference is Pre-Platonic Philosophy, with special reference to Pre-Socratic Philosophy.
At MIT, Michael Smith (Australian National University) presents External Reasons.
At William and Mary, the Institute of Bill of Rights Law, is hosting the sixteenth annual Supreme Court Preview.
Legal Theory Lexicon I am experimenting with some weekend features for Legal Theory Blog. This week I am trying out the Legal Theory Lexicon, which will provide a very short introduction to a term, concept, or distinction that is important to contemporary legal legal theory. This series is intended mostly for law students, and especially for first year law students with an interest in legal theory. Here is the first installment, in what I hope will become a regular feature:
Why is the distinction between ex ante and ex post so important? Because it marks an important theoretical divide between consequentialist and deontological approaches to legal theory. Consequentialists, we might say, simply don't care about the question whether A has violated the rights of B, for their own sake. Rather, a consequentialist cares about the consequences of attaching liability to those who act like A did. Ex ante, is a strict liability rule or a negligence rule more efficient? Deontologists, on the other hand, care very much about who has acted rightly and wrongly. In tort law, for example, corrective justice theories of tort are associated with the ex post perspective. A should be liable to B, only if A has acted wrongly.
If you are a first-year law student, you might make a habit of asking yourself questions like the following:
Will the rule produce good consequences (as compared to the alternatives) from an ex ante perspective?
Welcome to the Blogosphere . . . to Stephen Bainbridge's new blog, called Corporation Law and Economics.
Saturday, September 13, 2003
Legal Theory Bookworm Last week, I recommended a classic work of legal theory, H.L.A. Hart's The Concept of Law. This week my choice is a contemporary work, that has the virtue of giving a peek into state of the art analytic jurisprudence in a slim and readable volume. The author is Julie Dickson, who is Fellow and Tutor in Law at Somerville College, Oxford--and is, of course, affiliated with the Oxford's jurisprudence and legal philosophy program--perhaps the best of its kind in the world. The book is Evaluation and Legal Theory (another online source is here). Here is a quick summary of Dickson's book:
By the way, the publisher of Dickson's book is Hart Publishing, which has a very fine legal theory list.
Download of the Week This week's recommendation is Frank Michelman's workshop paper, titled Brown v. Board of Education and The South African Constitution, which he presented on Thursday at Yale's Legal Theory Workshop series. Most readers of LTB know that Michelman is one of the most respected figures in the legal academy and one of the few who has transcended disciplinary lines and reached audiences in political theory, political philosophy, and beyond. Here is an excerpt from his paper:
Priest on the Market for Judicial Clerks George Priest (Yale Law School) has posted Reexamining the Market for Judicial Clerks and other Assortative Matching Markets on SSRN. Here is the abstract:
Garnett on the New Federalism Richard Garnett (University of Notre Dame - Law School) has posted The New Federalism, The Spending Power, and Federal Criminal Law (forthcoming Cornell Law Review, Vol. 89) on SSRN. Here is the abstract:
Friday, September 12, 2003
Preview of Coming Attractions & Kudos to Peter Northup On Saturday, I will post the Download of the Week and the Legal Theory Bookworm. And on Sunday, the Legal Theory Calendary and an experimental feature, Legal Theory Lexicon.
And by the way, last week's download of the week was a paper by Philip Pettit, given at the NYU Colloquium in Law, Philosophy, and Political Theory. Peter Northup is blogging this famous colloquium series over at Crescat Sententia. Here is his report on Pettit's paper, Akrasia: Collective and Individual. Peter is doing all of us a great service by blogging from the colloquium. I'm going to give an excerpt, but unless you have read the paper or the preceding portions of Peter's excellent report, this may seem a bit dense:
Birondo at Arizona Today at the University of Arizona's philosophy colloquium, Noell Birondo does an internal workshop entitled Reasons for Action and the Virtues of Character.
Updated: Volokh's Defense of Intellectual Property
Rival versus Nonrival Consumption But there is a difference between property in resources (land, chattels) and intellectual property. That difference, as Volokh explains with great lucidity, concerns rivalrousness. Consumption of tangible resources is rivalrous--my using a plot of land interferes with your consumption of the land. Consumption of intellectual property is nonrivalrous--my making a copy of an MP3 file does not significantly interfere with your ability to make a copy.
The Well, Take One Volokh then provides a wonderful example that illustrates how consumption of resources can be nonrivalrous (in a sense):
The Well, Take Two So let's go back to Volokh's example of the farmer in the dell with the high capacity well. (Let's assume that this well is located right on the edge of the farmer's property, so that neighbors can draw from it without having to enter on the farmers land, interfering with other uses.) The well is a club good. If too few neighbors use the well, there is a net loss of welfare (because neighbors are forced to use other, more expensive, sources of water). The classic solution to this problem is to create a club. If you join, you can draw as much water from the well as you want. If you don't join, then you are excluded. If the price is too high, the well will be underutilized. If the price is too low, the well will be overutilized--either it goes dry or long queues diminish the utility of the well for all. (In Volokh's example, it might be the case that the well would never be overutilized because of costs not included in the price of club membership. For example, even if membership in the club was free, it might be the case that transportation costs would naturally limit the number of users so that the carrying capacity of the well was not exceeded.)
Intellectual Property Is Not a Club Good And this is where I take issue with Volokh's argument. Intellectual property is not a club good. Take MP3 files. When a new song is released, the CD is ripped and MP3 files are made available via P2P systems. The CD is a physical resource--it is traditional tangible property. The internet connections of the many users of P2P networks are also tangible resources--they are also property. But the "intellectual property," the information that constitutes the MP3 file, is not a pure private good, because consumption is nonrivalrous. (Consumption of the CD is rivalrous. Consumption of the internet connection is rivalrous. But these are not the intellectual property.) Here comes the crucial move. Moreover, the intellectual property is not a club good. Why not? Because there is no optimal size of the club. Unlike wells and movie theaters, there is no net social welfare gain that derives from limiting the number of consumers through pricing. If too many people crowd into a theater or too many people attempt to use a well, there is a net loss of social welfare. If everyone who wants to do so listens to a song, there is a net gain of social welfare.
And What Are the Implications? Volokh's core argument was that intellectual property rights create incentives to produce intellectual property. That argument is unaffected by the club-goods argument I've just made. But in addition to his core argument, Volokh made another move. His move was prompted by the fact that consumption of intellectual property is nonrivalrous and hence that the case for intellectual property is different than the case for property in tangible resources. His move was to point to cases in which consumption of tangible resources is, in a sense, nonrivalrous. He made this move by using examples like movie theaters and water wells. But these examples are examples of club goods. Intellectual property is not a club good. Of course, the incentive-for-investment argument still holds, for pure-private goods, for club goods, and for intellectual property. But Volokh's argument does not succeed insofar as he attempts to show that the case for property in tangible resources that are club goods is really the same as the case for intellectual property.
Read Eugene Volokh's very fine post! And for Volokh's reply, go here and for my further thoughts scroll up or click here.
McGinnis at Alabama At the University of Alabama School of Law's faculty colloquium series, John McGinnis (Northwestern) presents The Political Economy of International Antitrust Harmonization.
Ghosh on the Pubic Domain Shubha Ghosh does an internal workshop at SUNY Buffalo on Culture, Economics, and the Public Domain, with comments by Jose Plehn-Dujowich.
Leiter Reports on Philosophy Departments Moves Over at the Leiter Reports, Brian both reports and comments on major moves in philosphy. From the legal theory perspective, important are:
Conference Announcement: Midwest Political Science Association
Janet Box-Steffensmeier (Ohio State University), David Canon (University of Wisconsin), Program Chairs This year, we will hold the 62nd Annual National Conference of the MPSA at the Palmer House Hotel in Chicago, IL from Thursday, April 15th through Sunday, April 18th, 2004. The Palmer House Hotel is one of the oldest hotels in America, and is located in the center of the city, a few blocks from the Art Institute, shopping and restaurants. To make things more convenient for conference attendees, we have reserved an even larger number of meeting rooms and hotel rooms, which allows us to hold the entire event in one hotel. Paper/Poster/Informal Roundtable Proposals. The MPSA provides an excellent opportunity for scholars to present their research in a spring conference and receive helpful, cogent feedback. The deadline to submit proposals to present a paper in a traditional format or in a poster session is October 10th, 2003. All proposals must be submitted on-line at:
Call for Papers: Campaign Finance after Federal Election Commission v. McConnell
Symposium on the Affirmative Action Cases
Peter Schuck, Reflections on Grutter
Susan Low Bloch, Looking Ahead: The Future of Affirmative Action After Grutter and Gratz
Dennis Shields, Some Observations About Grutter
Michael Rosman, Uncertain Direction: The Legacy of Gratz and Grutter
Miranda Massie, Representing the Student Intervenors in Grutter
Paula Johnson, Jam Tomorrow and Jam Yesterday: Reflections on Grutter, Gratz and the Future of Affirmative Action
Richard Kahlenberg, The Conservative Victory in Grutter and Gratz.
Bill Lan Lee, Barbara Reskin, and Deborah Jones Merritt, Growing Beyond Grutter.
Conference Announcement: Values and Virtues
30th April-2nd May 2004 UNIVERSITY OF DUNDEE Department of Philosophy West Park Centre, University of Dundee, Scotland Description:
Those presenting submitted papers will be eligible for a reduction in their registration fees. Papers should be submitted to Dr Chappell at the address below before Christmas Day 2003. Decisions on submitted papers will be announced in January 2004.
Thursday, September 11, 2003
Lichtman Update: The RIAA Litigation Offensive Doug Lichtman's Wall Street Journal editorial, which proposes immunizing individuals who download or upload copyrighted music from individual civil liability, is getting quite a reaction. Lichtman got the Wall Street Journal to grant permission to post the whole editorial, and Will Baude has done that on Crescat Sententia. And Lichtman emailed some comments on my post from yesterday, which now appear at the end of the main post here. More on this in a day or two--in the meanwhile, read the very interesting op/ed.
More on the RIAA On this same general topic, I strongly recommend a post entitled "RIAA Blowback" by Doc Bug.
Review of Feinberg Russ Shafer-Landau (University of Wisconsin, Madison) has a review of Joel Feinberg's Problems at the Root of Law (Oxford University Press, 2002) ISBN 0195155262, on Notre Dame Philosophical Reviews. Here is a taste:
Franck at NYU Thomas Franck (NYU School of Law) presents Presumptions at Law: An Enquiry into the Existence of a Global Common Sense at the NYU Colloquium in Legal, Political and Social Philosophy, the extraordinary series run by Ronald Dworkin and Thomas Nagel.
Michelman at Yale Frank Michelman is presenting Brown v. Board of Education and The South African Constitution today at Yale's Legal Theory Workshop series.
Gross at UCLA on Indian Identity At UCLA's Legal History Workshop, Ariela Gross (University of Southern California) presents Between Race and Nation: Indian Identity on Trial.
Simester at Boston University Andrew Simester is presenting today at Boston University's faculty workshop series.
Ayres at Michigan At the University of Michigan's law and economic series, Ian Ayres (Yale) workshops Why Not?: How to Use Everyday Ingenuity to Solve Problems Big and Small.
Davies at ANU At the Australian National University's Research School of Social Sciences's philosophy seminar, Martin Davies (RSSS) presents Epistemic Projects and the Abstract Space of Justifications
Wednesday, September 10, 2003
Updated Updated Version: Lichtman on the RIAA Litigation Offensive
As I mentioned yesterday, the RIAA litigation offensive has begun with an impressive sounding but actually paltry 261 lawsuits. Doug Lichtman (University of Chicago) has a provocative and characteristically smart editorial in the Wall Street Journal (subscription required) entitled KaZaA and Punishment. (Update: Lichtman got the WSJ to give permission to post the whole editorial, which you can get here on Crescat Sententia courtesy of Will Baude.) Lichtman makes some very interesting points. He begins with one of the core problems in the RIAA's attempts to litigate directly against Napster successors like KaZaA:
New Weekend Features on Legal Theory Blog On Saturdays, Legal Theory Blog features the Download of the Week and the Legal Theory Bookworm. On Sunday, you will find the Legal Theory Calendar, and starting this Sunday, a new weekend feature, the Legal Theory Lexicon, a very brief introduction to some important concept or idea in legal theory.
American Law and Economics Review The Fall 2003 issue is now available on line to subscribers. Here are the articles:
Scholz at Florida State At Florida State, John Scholz (Epps Scholar, FSU Department of Political Science) workshops Water Conflicts and Local Policy Networks.
Tuesday, September 09, 2003
Welcome to the Blogosphere . . . to Philosophical Conversations, which features Trevor Maddock and Gary Sauer-Thompson. This is, I suppose, the time to confess my lingering affection for Frankfurrt School Critical Theory--in my deep dark past, you will even find this.
RIAA Lawsuit Offensive Begins
Copyrights and Copynorms I've blogged before on the question whether the RIAA's litigation strategy is likely to be successful in the long run. It has two things going for it. First, there will undoubtedly be a deterrent effect. Some online filesharers are likely to decide that the legal risks are not worth the benefit. Second, there will also be an educative, norm-inculcating effect. Many users of file sharing services have convinced themselves that file sharing is legal, and the publicity surrounding the lawsuits will change the minds of some. But will that be enough? There is at least prima facie reason to doubt that the litigation offensive will succeed. Consider the following:
More New Papers on the Net I'm catching up with a small backlog. Here the second installment of new papers for today:
New Papers on the Net Here is today's roundup:
24/7 Filibuster Bust From The Hill, news that the Senate leadership has abandoned plans to force a 24/7 filibuster. Here's a snipped:
McCaffery on Tax Timing Edward McCaffery (University of Southern California Law School) has posted The Fair Timing of Tax on SSRN. Here is the abstract:
Gulati and Langevoort on Fraud by Hindsight at Georgetown At Georgetwon, Mitu Gulati and Don Langevoort present 'Fraud by Hindsight' in Securities Litigation: Intuitive Psychology, Hostility Towards Lawsuits, or Nothing But a Felicitous Phrase?
Robertson at Texas At the University of Texas, John Robertson presents Reproductive Technology in Germany and the U. S.: An Essay in Comparative Law & Bioethics.
Merkel at Washington & Lee At Washington and Lee's Faculty Workshop series, William G. Merkel (Oxford & Columbia) presents To See Oneself as the Target of a Justified Revolution: Thomas Jefferson and Gabriel's Uprising.
Monday, September 08, 2003
Hasen Blogging BCRA Today--Update Rick Hasen is blogging from the Supreme Court's argument in the BCRA case today. His first report is up on his marvelous Election Law Blog. Here is a snippet:
New Papers on the Net Here is today's roundup:
Human Actions, the Survival of Keystone Species, and the Resilience of Ecological-Economic Systems by Amitrajeet Batabyal (Rochester Institute of Technology - Department of Economics).
Electronic Publishing and Paper Journals
Strandburg on the Public Benefits of Patent Katherine Strandburg (DePaul University - College of Law) has posted What Does the Public Get? Experimental Use and the Patent Bargain. A very important topic! Here is her abstract:
Korobkin at UCLA At UCLA Russell Korobkin presents Bounded Rationality and Unconscionability: A Behavioral Approach to Policing Form Contracts, (Link here. You need to click through to get to the page with the paper.)
Sunday, September 07, 2003
Affective Forecasting The New York Times has a very good piece on affective forecasting, the study of individual ability to predict the effect of particular events on future affective states. Oops, that was a lot of jargon. That is, "Can you predict what will make you 'happy'?" Here is a taste:
Equilibirum or Downward Spiral? Election law superblogger, Rick Hasen, has a typically insightful analysis of the Estrada withdrawal on his Election Law Blog. I urge you to read Rick's post, which is much more upbeat about the implications of Estrada than my post from three days ago, Withdrawal: What Does Estrada's Decision Mean?.
Legal Theory Calendar
At UCLA Russell Korobkin presents Bounded Rationality and Unconscionability: A Behavioral Approach to Policing Form Contracts, (Link here. You need to click through to get to the page with the paper.)
At Georgetwon, Mitu Gulati and Don Langevoort present 'Fraud by Hindsight' in Securities Litigation: Intuitive Psychology, Hostility Towards Lawsuits, or Nothing But a Felicitous Phrase?
At the University of Texas, John Robertson presents Reproductive Technology in Germany and the U. S.: An Essay in Comparative Law & Bioethics.
At the University of Michigan's law and economic series, Ian Ayres (Yale) workshops Why Not?: How to Use Everyday Ingenuity to Solve Problems Big and Small.
Andrew Simester is presenting at Boston University's faculty workshop series.
Thomas Franck (NYU School of Law) presents Presumptions at Law: An Enquiry into the Existence of a Global Common Sense at the NYU Colloquium in Legal, Political and Social Philosophy, the extraordinary series run by Ronald Dworkin and Thomas Nagel.
At UCLA's Legal History Workshop, Ariela Gross (University of Southern California) presents Between Race and Nation: Indian Identity on Trial.
At the Australian National University's Research School of Social Sciences's philosophy seminar, Martin Davies (RSSS) presents Epistemic Projects and the Abstract Space of Justifications
At the University of Alabama School of Law's faculty colloquium series, John McGinnis (Northwestern) presents The Political Economy of International Antitrust Harmonization.
Saturday, September 06, 2003
Legal Theory Bookworm
The Concept of Law I once had a conversation with a faculty member at a leading American law school, who asked me, "Should I read The Concept of Law?" I have to admit that I was shocked by the question. I had (naively) assumed that this book would have been read by every legal academic. After all, if it is not the greatest work of legal theory from the twentieth century, it is surely on the short list of leading contenders. Why is Hart's book so important? First, and foremost, it is a model of how to do legal philosophy. Hart's writing is model of clarity and precision. Second, and of almost equal importance, Hart developed a set of foundational ideas that have wide sway even today. Here is a brief catalog:
Download of the Week The download of the week is Philip Pettit's paper, Akrasia, Collective and Individual , which he presented on Thursday at the New York University Colloquim in Law, Philosophy and Political Theory. Pettit is one of the most important and interesting political philosophers working today. Here is a taste of his paper:
Colloquium in Honour of Christopher Taylor at Oxford At Oxford today, there is a Colloquium in Honour of Christopher Taylor. Here is the lineup:
Friday, September 05, 2003
Preview of Coming Attractions I've been experimenting with various weekend features. Tomorrow (Saturday), I post the Download of the Week and experiment with Legal Theory Bookworm, a short comment about a classic or contemporary work of legal theory. On Sunday, the Legal Theory Calendar rounds up all the workshops, colloquia, conferences, and lectures for the upcoming week.
Request for Help! Workshop Information Thanks to everyone who has sent in information about workshops, hither and yon. One of the features of legal theory blog is regular postings regarding workshops, colloquia, and conferences in legal theory, very broadly defined. If your law school, philosophy, economics, political science, or other department has a workshop or colloquium program, or a conference, distinguished lecture, or other event, that would be of interest to the readers of Legal Theory Blog, please email me. If there is a website with the schedule, just send me an email with the link, but if you have the information in another form (an email, a word processing document), I will post the schedule or advanced announcement on a new companion blog--Legal Theory Workshops. These postings of workshop schedules will supplement the new Sunday Calendar and my usual practice of blogging on workshops, lectures, and other talks on the morning of the day they occur. My email address is lsolum AT sandiego DOT edu. If you only have paper, you can send it to my snail mail address, listed on the sidebar to the left, towards the bottom. Thanks in advance for the help! This post will repeat frequently for the next few weeks--thanks for understanding.
Welcome to the Blogosphere Marginal Revolution is a joint venture of Tyler Cowen and Alex Tabarrok.
Welcome to the Blogosphere . . . to Rodger A. Payne, an International Relations scholar from the University of Louisville.
Globalization of the Judiciary at Texas Continues At the University of Texas, the UT Symposium on Globalization and the Judiciary continues from yesterday.
Call for Papers: Australasian Association of Philosophy (New Zealand)
Gore on Metaphors for New Technologies At Florida State today, Stephanie Gore does an internal workshop titled "Judicial(/Judicious) Use of Metaphors for New Technologies."
Thursday, September 04, 2003
Withdrawal: What Does Estrada's Decision Mean?
The Role of Ideology in Judicial Selection First and foremost, the lesson of Estrada is that political ideology is out of the closet as the primary factor in battles over judicial nominees. Ideology has ebbed and flowed as a factor in the judicial selection process. At some points in American history, ideology has played the leading role;especially when some great political controversy of the day was likely to be resolved by the Supreme Court. At other times, character and judicial philosophy, rather than political ideology, has dominated the judicial selection process. But the role of political ideology has never been more prominent or explicit than it has been during the Presidency of George W. Bush. And in large part, this prominence is due to Senator Charles Schumer, who has worked to rally the Democratic Senate Minority around the political ideology flag. Schumer fired the opening salvo of his ideological offensive in an editorial in the New York Times. Here is some of what he wrote:
Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago. This ''gotcha'' politics has warped the confirmation process and harmed the Senate's reputation.
Why Was the Republican Leadership Unable to Bust the Filibuster?
24/7 Won't Work The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn't the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. No modern filibuster has been broken by the 24/7 option. For more on this, see my post entitled Update on Filibusters.
Recess Appointments If 24/7 is doomed, what about recess appointments? The President has the power to make recess appointments while the Senate is in recess. Can't the President simply use the recess appointments power to circumvent the filibuster? The problem with recess appointments is that they expire at the end of the next term of the Senate. This makes recess appointments unattractive to nominees, who may well find a temporary judicial office an unattractive career option. Lawyers are unlikely to want to spend a year or more away from their practice without the prospect of life tenure. Those who already hold judicial office may not wish to give up the security of the current seat for a temporary appointment. In an influential op/ed, Randy Barnett suggested that this problem might be overcome by appointing law professors or senior judges who are nearing retirement, but this suggestion does not seem to have moved President Bush. For my extended analysis of the recess appointments option and its long-term implications, see my post entitled Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.
No Nukes What about the parliamentary option? Senator Robert Byrd pioneered the use of parliamentary maneuver to limit the filibuster. His technique is simple. As applied to the filibuster of a judicial nominee, it might work like this. A Senator moves to close debate on a judicial nominee. A majority votes for cloture. The chair rules that the motion has passed. The minority objects to the decision of the chair. Under Senate procedure, the chair's ruling can be appealed to the Senate, but is sustained if a majority votes to uphold the chair. Viola! The filibuster is over. That's so simple. Why hasn't the Republican leadership done that? Because the Minority can retaliate. The rules of the Senate require the voluntary cooperation of the minority for the Senate to carry on its ordinary business. If the minority were determined to against a Republican first strike, they could bring the business of the Senate to a screeching stop simply by calling for a roll-call vote on every unanimous consent motion. Of course, the majority could escalate further, by changing the Senate Rules to permit the leadership to control who takes the floor. But this would fundamentally transform the nature of the Senate. It would make the Senate function like the House, which at the level of parliamentary procedure is essentially an oligarchy. This change would diminish the power of every Senator except those who were high in the Republican leadership. For an extended analysis of these issues, see my post entitled Breaking the Deadlock: Reflections on the Confirmation Wars.
The Flip Side: Democratic Acquiescence The story that I have told so far suggests that the Democrats are in the drivers seat, but that would be the wrong conclusion to draw. The Democrats can block nominations, but they cannot nominate. It is true that in theory the Democrats could try to block every right-wing Republican nominated for judicial office with the aim of forcing the President to nominate some Democrats and lots of moderate Republicans, but they have not pursued this tactic. Why not? I suspect that the answer has to do with the costs that this move would impose on the Democrats. If the Democrats tried to filibuster each and every Republican nominee, they could no longer argue that they were only opposing the most extreme nominations. The federal bench would begin to depopulate and the Republicans would be able to argue that Democrats were crippling the courts for partisan reasons. Moreover, mass filibusters would change the political stakes. When the Democrats are only filibustering a handful of nominees, the costs to Republicans of mass recess appointments or the nuclear option exceed the political benefits. But if the Democrats attempted a mass filibuster, that equation might change, with the consequence that Democrats would lose the ability to block any nominations. The reality is that the Democrats are allowing most judicial nominations to go through, that most of those who are confirmed are conservative Republicans, and that some of these, like Michael McConnell, are both very conservative and extremely able. For more on the role of ideology in judicial selection, see my post entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy
The Shoe that Did Not Drop Confirmation wars were big news in the Spring, but they have faded from the front pages with the lazy days of summer. Why? Because of the shoe that did not drop. Which shoe? Why William Rehnquist's shoe, of course. In the Spring it looked as if the Estrada skirmish in the Senate was just a warm up for the mother of all confirmation battles, which would have been triggered by a resignation from the Supreme Court. But the vacancy never materialized? Why not? Who knows! One factor may be the confirmation wars themselves. Another factor may be the BCRA case, to be argued next week--there is some indication that Rehnquist has a strong interest in the issues raised by the constitutional challenge to McCain-Feingold. Whatever the reason, the shoe did not drop. And when the shoe did not drop, the stakes did. When the Estrada, Own, and Pryor filibusters were viewed as the early skirmishes in the war over the balance of power on the United States Supreme Court, the stakes were very high indeed. But if you think of the stakes as three seats on the Courts of Appeal, high political drama is transformed into low political farce.
The Downward Spiral of Politicization or Equilibrium? If you have followed this blog since the early spring, you know that I have been arguing for some time that the confirmation wars are symptomatic of a downward spiral of politicization. I don't want to exaggerate. There have been intensely political struggles over the judiciary in the past, but both the public record and my private conversations with those directly involved convinced me that the trend for the last two decades or so has been towards increased politicization of the judicial selection process. The whole story includes filibuster of Abe Fortas, Democratic defeat of Carswell, Haynsworth, the Bork and Thomas nominations, Republican obstruction of Clinton's nominees, leading to the filibuster of Estrada, Owen, and Pryor. Now that Estrada has withdrawn, we might ask the question: have we reached the bottom? If we have, then it seems to me that the next move would involve some resolution of the remaining controversial nominations. Perhaps, a deal might be struck, involving some horsetrading. Owen and Pryor withdraw, but Janet Brown is confirmed--or vice versa. Perhaps, the Republicans soldier on, with nominations dying a natural death at the end of the Senate's term. This pattern could continue until the balance of power or the control of the Presidency shifts. Most nominations are confirmed, but the most skilled and ideologically conservative candidates do not make it through. But there is another possibility. We may not have reached the bottom of the downward spiral of politicization. If the Republicans intend further escalation, it is obvious that they are waiting for some triggering event. What might that be? Perhaps, a filibuster of Janet Brown. Perhaps, the next Supreme Court vacancy. On the question whether we have reached a stable equilibrium in the judicial selection game, I simply do not have any definite opinion other than, it is too soon to tell.
The Path Not Taken The judicial selection process has become politicized. If that trend continues, it seems likely that judges will be selected on the basis of their political ideology rather than their character. In current political circumstances, this means that judges will be come from a band that starts in the political center and ends well short of the far right. If the Republicans were to gain 60 votes in the Senate (likely 55-56 Republicans plus 4 or 5 conservative Democrats), then we would expetct a shift to the right. If the Democrats were to regain control of the Senate, we would expect a shift towards the center. You can imagine the remaining permutations. But here is the thing about ideological selection of judges. If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine. Moreover, ideological judges are not likely to possess what I call the judicial virtues. And in particular, ideological judges lack the virtue of justice--the dispositon to decide according to law and to avoid the temptation of using judicial power to remake the law as one wishes it to be.
The path not taken leads to legal formalism. There is an alternative to the selection of ideological judges whose political orientation reflects the balance of power in and between the Presidency and the Senate. That alternative is to select judges who are legal formalists, who decide the cases before them on the basis of the rules laid down. If political conditions are right, then both parties have good reasons to support the selection of formalist judges. Of course formalist decisions have political implications, but the political tilt of formalist judges is simply a reflection of the political history that leaves its traces on the Constitution, statutes, and precedents that a formalist judge respects and attempts to follow in good faith. And formalist judging produces a very great benefit--the rule of law. For more on this, see my post titled A Neoformalist Manifesto.
Can the Bell Be Unrung But is it too late? Have we moved so far down the spiral politicization that it is impossible to turn back? At this stage in the game, it seems unlikely that Democrats would trust a Republican nominee who presented herself as committeed to the rule of law. And given the Republican perception that the Democrats have unfairly escalated the confirmation wars, it seems unlikely that Republicans will forgo the opportunity to attempt to find confirmable candidates for judicial office who are committed to the political agenda of the right. Charles Schumer rang the bell and its peel has been heard far and wide. Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions. Can that bell be unrung? I wish that I could say "yes" with confidence, but alas, I cannot.
Sherry on Judges of Character Suzanna Sherry's paper, Judges of Character, is now available on Westlaw and in print at 38 Wake Forest L. Rev. 793 (2003). Here is a taste:
Hegel at Oxford Today and tomorrow at Oxford:
Pettit at NYU Phillipe Pettit (Princeton University, Politics) presents Akrasia, Collective and Individual at New York University Colloquim in Law, Philosophy and Political Theory.
Globalization of the Judiciary at Texas At the University of Texas, the UT Symposium on Globalization and the Judiciary starts today.
Call for Papers: Ethical, Legal and Social Aspects of Human Genetic Databases
Wednesday, September 03, 2003
Conference Announcement: Mind and Society
Call for Papers: American Journal of Bioethics
New Weekend Features Every Saturday, Legal Theory Blog features the Download of the Week, a paper selected from all of those mentioned from Sunday through Saturday. And starting this Saturday, I will begin the Legal Theory Bookworm, a recommendation of a classic or contemporary work in legal theory, with a brief commentary. On Sundays, you will find the Legal Theory Calendar, a compendium of the workshops, colloquia, conferences, and lectures for the upcoming week.
Daar on Cloning Judith F Daar (Whittier College - Whittier Law School) posts The Prospect of Human Cloning: Improving Nature or Dooming the Species? (forthcoming Seton Hall Law Review) on SSRN. Here is the abstract:
More Moore CNN.com has an interview with Judge Roy Moore. Here is a taste:
Congratulatons to Chris Bertram His book, Rousseau and the Social Contract, has been published in the UK. And while your at it, you might check out this post by Chris on Leon Trotsky.
Tuesday, September 02, 2003
Kenneth Culp Davis Kenneth Culp Davis, one of the most influential administrative law scholars of the past century, has passed away at the age of 94. Although Davis was an active scholar at an age when most have turned to more leisurely pursuits, his influence was most strongly felt in an era before the Internet had reached into every faculty office and even before the dominant influence of Westlaw and Lexis/Nexis. Nonetheless, Davis's influence continues, with more than 50 articles citing his work in with 2003 publication dates on the Westlaw JLR database and about 2000 overall. Davis was one of the last of great treatise writers, and although the tradition continues, it no longer has the meaning today that it did when giants like Wigmore, Corbin, Williston, and Davis walked the earth. I never knew Davis, but early in my career I heard stories about him. I gather that he had an indomitable spirit.
Bryson Interview William Curtis Bryson of the U.S. Court of Appeals for the Federal Circuit is interviewed by Howard Bashman on his monthly 20 questions with an appellate judge feature. Link here. Bryson gives incisive answers to smart questons. Read the whole thing, after this taste:
The United States Court for China? Teemu Ruskola (American University) has posted Law's Empire: The Legal Construction of 'America' in the 'District of China' on SSRN. Here is the abstract:
The Value of Toleration, Religion, and Gay Rights
Volokh Responds Eugene has two very thoughtful posts that respond, here and here. In particular, Volokh writes, with respect to the free faith distinction:
Shifting the Burden So does Volokh's argument work? Consider first, this crucial move (from near the beginning of the passage quoted above):
Stability But coercion of the forms of religious worship can do great harm to social stability--this is the lesson of the Wars of Religion. Because many individuals see themselves as having a transcendent interest in practicing their own religion and not be coerced to practice another, coercing religious practice can lead to serious problems of social instability. You must attend my church and go through the motions of worshipping my God!--these are fighting words. Do these same reasons apply to toleration of homosexuality--again, asking the question from within the religious perspective? Not necessarily. Those who affirm religiously-motivated prohibitions on homosexual conduct are likely to believe, as a matter of fact, that criminal prohibition of homosexual conduct is unlikely to lead to social instability. Quite the contrary, they are likely to believe the opposite--that legalization will lead to social instability, albeit of a far lesser magnitude than would coercing religious practice. These factual beliefs may well be wrong, but that is an empirical debate.
Harm to Self In addition, those who believe that homosexuality is contrary to God's law are likely to believe that homosexual conduct is grievously injurious to those who engage in it and that these injuries can be prevented by external coercion. Personally, I have difficulty grasping this argument, but the idea is that, whether or not an individual, gay or straight, has the correct religious faith, they harm themselves by engaging in sexual conduct outside the realm sanctioned by God. (For some religions, this is a small realm indeed.)
The Point I should end by being clear about my point. I am not arguing for the criminalization of homosexuality. My own belief is that criminalization is not only bad policy, it is morally wrong. Rather, my disagreement with Volokh is a very narrow one. I think that it is very unlikely that religious opposition to Lawrence or the broader policy for which it stands can be shown to be internally inconsistent with religious support for religious toleration. Volokh's recent posts touch on many points beyond the narrow one I have just explored. I urge you to read them in full.
Prakash and Yoo on the Origins of Judicial Review Sai Prakash and John Yoo's important article, The Origins of Judicial Review is just up on Westlaw and is available in print at 70 U. Chi. L. Rev. 887 (2003). Here is a taste:
Monday, September 01, 2003
Welcome to the Blogosphere Welcome to Sapere aude, a blawg written by law students at the Indiana University, Indianapolis.
Donald Davidson Brian Leiter reports that the distinguished philosopher, Donald Davidson, died on Saturday, August 30, 2003. Davidson was a giant of contemporary philosophy. Davidson's work affected the very heart of contemporary philosophy in profound ways, and recently his work has begun to be cited with increasing frequency by legal scholars. (The JLR database has more than 200 articles citing his work.) If you are unfamiliar with Davidson's work, but would like to read something by him, I recommed his essay, The Very Idea of a Conceptual Scheme (1974). It is available in Inquiries into Truth and Interpretation, published by Oxford in 1984.
Bashman is Back How Appealling is back with a vengence! What a relief!
New Weekend Features Every Saturday on Legal Theory Blog, I recommend a download of the week. Here is the recommendation from this past Saturday, and here is the week before. On Sunday, I post the Legal Theory Calendar, a listing of workshops, colloquia, conferences, and lectures for the upcoming week. Scroll down or go here for this week's calendar.
Yoo and Ho on Terrorism John Yoo (U.C. Berkeley) and James Ho (who is listed as an independent, but is, of course, well-known those who follow happenings on the Hill) have uploaded The Status of Terrorists (forthcoming Virginia Journal of International Law) on SSRN. Here is the abstract:
Elhauge on Monpolization Standards Einer Elhauge (Harvard) has posted Defining Better Monopolization Standards (forthcoming in the Stanford Law Review) on SSRN. Here is the abstract:
Lemley on Standad Setting and Intellectual Property Mark Lemley (U.C. Berkeley) has posted Intellectual Property Rights and Standard-Setting Organizations (forthocming in the California Law Review) on SSRN. It goes without saying that Lemley is one of the premier intellectual property scholars in the world today. Here is the abstract for his paper:
Blogging from Philadelphia Wrap Up: The Role of Character in Judicial Selection
Mark Tushnet gave a wonderful, carefully argued paper entitled Why Character Matters, although a more apt title might have been Why Character Doesn't Matter. Tushnet posited a series of hypothetical. One, for example, concerned an Assistant U.S. Attorney who loses a big case for bad reasons and then gets inebriated at a bar and inappropriately touches a waitress. Is this relevant to the question whether this attorney should be nominated or confirmed as a federal judge? Tushnet argues that this is not terribly relevant.
My own paper, The Importance of Character in Judicial Selection was also on the program. I'll post a link to the paper when it goes up on SSRN. Keith Whittington provided excellent comments on all the papers.