Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Friday, October 31, 2003
Leiter on the Reproduction of Hierarchy Check out this post by Brian Leiter on the history of hierarchy in the academic philosophy in the U.S.
Baude on the Brown Nomination Will Baude's post on what Brown has actually said about Lochner is essential reading if you are interested in the current controversies over the judicial selection process.
Amar on the Scalia Recusal in the Pledge Case Vik Amar has some characteristically thoughtful remarks over on Findlaw. Here is a taste:
Heuer on Reasons and Oughts at Penn At the University of Pennsylvania philosophy colloquium, Ulrike Heuer (Penn) presents Reasons and Oughts.
Otsuka on Skepticism About Saving the Greater Number at Bristol At the University of Bristol, Mike Otsuka (UCL) presents Scepticism About Saving the Greater Number. Surf on over to Crooked Timber, for some more on Otsuka from Chris Bertram.
Waldron on the Primacy of Justice at North Carolina At the University of North Carolina philosophy speakers series, Jeremy Waldron (Sheps Distinguished Visitor) presents The Primacy of Justice.
Meidinger on Property & Development at Buffalo At SUNY Buffalo, Errol Meidinger presents Property Law in the Maw of Development Policy and Institutional Theory: Problems of Structure, Choice and Change, with comments by Sharmistha Bagchi-Sen.
Welcome to the Blogosphere . . . belatedly to The Serious Law Student. So that's where the serious law student is!
Thursday, October 30, 2003
A Bloggers Dream? Dennis Patterson (Rutgers, Law and Philosophy) will surely be pleased by this.
Privilege Sticks, or why the defeat of cloture on Pickering is important The democrats have defeated the cloture vote on Charles Pickerings nomination to the U.S. Court of Appeals. Here is taste from the L.A. Times report:
Class Conflicts: Ex Post?, Ex Ante? or Behind the Veil?
Here is the 64 thousand dollar question: How do we determine what counts as an impermissible conflict of interest?
Miller on Conflicts of Interest in Class Action Litigation As you can tell, this whole topic fascinates me. So you will not be surprised to learn that I was excited to see that Geoffrey Miller (New York University School of Law) has posted Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard on SSRN. Miller's very interesting paper addresses these important and difficult questions. Here is the abstract:
A Few Observations About Class Conflicts & the Veil of Ignorance Miller’s paper deals with the intersection between two topics that are near and dear to my heart, procedural justice and the veil of ignorance as a theoretical tool for normative analysis of law. In order to get at the really interesting stuff, I need to fill you in on some background about class actions & class conflicts, so let’s roll!
Theory and Practice: The Role of Class Counsel That’s the theory, but the practice is a bit different. In the real world, the major decisions in a class action are likely to be made by the lawyers for the class, with the class representative acting more or less as a “rubber stamp,”; because the lawyers know more and it would be very costly for the representative to learn enough meaningfully to control the lawyer. One of the requirements for class certification is “adequacy of representation.”; Given the important role of class counsel, it is not surprising that both the representative party (the nominal plaintiff) and the counsel for the class must be capable of adequately representing the interests of the absent members of the class.
Inadequate Representation A judge might find that the class representative or class counsel is an inadequate representative for a variety of reasons. For example, the class representative might be incompetent, unable to understand the implications of her decisions on behalf of the class. Or the class counsel might be insufficiently experience, as when a first-year lawyer attempts to represent a class in a very high stakes case. But one of the most important reasons for finding inadequacy of representation is “conflict of interest.” One kind of conflict is a conflict between the representative party and the class. A second kind of conflict is between class counsel and the class. A third kind of conflict occurs when some members of the class have interests that oppose those of other class members. One of the really terrific things about Miller’s paper is that provided a wonderful typology of conflicts of interests in class actions.
Intraclass Conflicts The third kind of conflict is a conflict between subgroups (or members) of the class. Give me an example! A famous example is provided by the Supreme Court’s decision in Hansberry v. Lee, a case involving a racially restrictive covenant and a subdivision. Some members of the class had an interest in having the covenant upheld; other members of the class had an interest in having the covenant struck down. But the class included both groups and was controlled by the group the wanted the covenant upheld. This is a classic example of an intraclass conflict.
What I Am Not Going to Discuss Miller’s paper discusses all kinds of class conflicts, but from this point forward I will limit my discussion to intraclass conflicts. These are probably not the most important conflicts from a practical standpoint; conflicts between counsel and class best fit that description. But intraclass conflicts are still important, they are very interesting to me, and Miller has some very provocative points to make about them.
Ex Ante: Forward Looking In general, ex ante means forward looking. Thus, the ex ante perspective on class conflicts asks the question from the point in time at which the certification decision is made, i.e. at the outset of the litigation. Given the facts as they are known at the outset of the litigation, will there be a conflict between subgroups within the proposed class?
Ex Post: Backward Looking In general, ex post means backward looking. The ex post perspective on class conflicts asks the question from the point in time when the litigation has been resolved, the class has either prevailed or lost, and if the class has prevailed, relief has been awarded. Given the facts as they are known at the end of the litigation, was there a conflict between subgroups within the certified class?
Why the Difference in Perspective Is Important In the very same case, the answer to the question, “Is there an intraclass conflict?,” may vary, depending on whether we answer the question from the ex ante or the ex post perspective. Why? Some intraclass conflicts that do not appear or exist ex ante, come into being or become noticeable ex post. For example, when a class action settles, it may happen that at some point in the settlement negotiation it will become clear that the defendant’s offer is for a limited amount (e.g. a dollar sum or set of payouts with a present value equivalent to some sum). And it is possible that the total amount on the table is exceeded by the best estimate of the best estimate of the legally correct value of all the claims. Each class member would prefer that she get the full legal value of her claim, and that the shortfall in the total settlement be borne by other members of the class.
Generalizing the Importance of Perspective More generally, once the class action is over and done with, there may well be cases where individual class members will say, “I now see that I could have done better through individual litigation." Or, “Now I see that a subclass could have been carved out, and I would have done better if I had been a member of that subclass.” The class action, ex post hurt me (or me and others like me) but helped other members of the class.
Why Ex Post Intraclass Conflicts Are Not Grounds for Decertification Ex post conflict usually is not a basis for decertification of a class. Why not? In the case of a limited settlement amount, the available funds for payout can be distributed so the shortfall is borne equally (or proportionately) among all class membersÂclass counsel has no incentive to deviate from a fair allocation of the settlement and the court should only approve a settlement that fairly allocates the proceeds among class members. Moreover, from the ex ante perspective, it may well be in the interests of all class members to proceed on a class basis, despite the fact that some members of the class may receive less from the class settlement than they might receive from individual litigation. Individual litigation may result in a greater individual award, but also greater attorney’s fees, and individual litigation may be riskier for plaintiffs, with some recovering more from their individual lawsuits but others recovering less or nothing at all. So depending on the facts, the ex post conflict of interest may well disappear if viewed from the ex ante perspective.
Class Conflicts Behind the Veil
The Interests of the Representative Class Members Miller then goes on to describe the interests of the representative class members. As before, substitute “representative” for “reasonable” in the description that follows:
Option Two: Proceed with subclasses having different representation.
Option Three: Do not proceed with a class action, but instead allow each class member to bring an individual lawsuit.
Process Costs and Benefits--such as the cost to the plaintiff of participating in individualized litigation and the amount of the damages that will be consumed by attorney’s fees.
Example One: Hansberry v. Lee The first example is based on a very famous Supreme Court case. I'm altering the case to make it simpler, but the changes I make will not affect anything important for our purposes. Here is the setup:
How would we analyze Hansberry v. Lee from our three perspectives (ex post, ex ante, and behind the veil?
Ex Ante: Here it gets just a tiny bit tricky, because it is actually not absolutely clear that the conflict in Hansberry did exist ex ante. The Supreme Court, however, seems to assume (reasonably) that at the time of certification, some class members would want to be free to sell to noncaucasian buyers and hence that some class members did and some did not want the declaration that the covenant was valid. Assuming this is the case, then from the ex ante perspective, there was a conflict in Hansberry and certification should have been denied.
Behind the veil of ignorance: But how would we look at Hansberry from behind the veil of ignorance? Suppose you are behind the veil. You don't know which member of the class you represent. How would you decide whether to consent to the conflict? Behind the veil, you don't know whether you favor or oppose the requested declaration. You could look at the costs and benefits of either decision. But if you do look at costs and benefits, you very well may consent to the conflict. Why? Because from behind the veil (as it is specified by Miller), all you can do is aggregate. If the monetary benefits of enforcing the covenant exceed the costs, you will consent. If there is a tie on direct costs and benefits (outcome costs), you will still consent, because consenting minimizes litigation costs. Suppose, however, that you don't look at costs and benefits. Then, all you could do would be to count noses. If more members of the class would support the declaration than oppose it, then you might reason, after the veil is lifted, it is more likely than not that the party I represent will favor the declaration, so from a risk natural self-interested perspective, I should consent to the conflict, because that maximizes the expected value of the parties that I represent.
Ex Ante: Reasoning from the ex ante perspective will be similar, but I will have less information. First, I will not know the actual amount awarded pursuant to a class action. Second, I will not have any additional information about the value of my own claim (e.g. any injuries that would become apparent between certification and the time at which the ex post evaluation would occur. Given the setup of the hypo, members of the high-value claim subgroup would not consent to a unitary class, but they would consent to two subclasses.
Behind the veil: But behind the veil of ignorance, consent is automatic. The parties behind the veil simply maximize the payouts for the group as a whole. Given that payouts will be larger with a class action than with subclasses or individual litigation (because the litigation costs will be lower), the representative parties behind the veil would give their consent to the conflict of interest. Interestingly, Miller, in his discussion of Amchem does not employ the veil of ignorance, and seems to argue instead, that ex ante conflicts would not be consented to by the reasonable plaintiff. (See page 37 of his working paper.)
Law School and Medical School For some interesting comments on comparative pedagogy, surf here.
Wall Street Journal on Janice Brown The Wall Street Journal weighs in today on Janice Brown's nomination:
This and That My apologies for accidentally posting several of today's events yesterday. The posts have been moved & yesterday's events were posted late. I've added En Banc to the blogroll & regular readers will have already noticed that the sidebar has been reorganized.
Sunder on the New Enlightenment at Yale At Yale's Legal Theory Workshop Madhavi Sunder (University of California at Davis (Law)) presents The New Enlightenment & Piercing the Veil. Here is a taste:
Kumm on a Constitional Theory of the Relationship between National and International Law at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Mattias Kumm (NYU School of Law) presents Towards a Constitutional Theory of the Relationship between National and International Law. Here is a taste:
Mack on Realism and Civil Rights at Alabama Kenneth Mack, of Harvard Law School, will be presenting the University of Alabama Law School's annual Hugo Black Leture today. His title is The Relationship Between the Legal Realist and Civil Rights Movements.
Gordon on Copyright at Boston University At Boston University, Wendy Gordon presents Rendering Copyright Unto Caesar: Free Speech, Locke, and the Sphere of Gift.
Miller on Immigation at University College, London At University College, London's School of Public Policy, David Miller (Oxford) presents Immigration: the Case for Limits.
Galston gives the Terrelll Lecture at Texas on Structures of Diversity At the University of Texas, William Galston (University of Maryland) presents the Alexander Terrell Centennial Endowed Lecture: Structures of Diversity: Political Pluralism and the Limits of Public Power.
Klausner on Foundations at Michigan At the University of Michigan's law and economics series, Michael Klausner (Stanford) presents Discounting Future Charity: An Analysis of Foundation Payout Rates and their Regulation & When Time is Not Money: Foundation Payouts and the Time Value of Money.
Priester on Sentencting & Separation of Powers at Florida State At Florida State University, B.J. Priester (FSU College of Law) presents The Separation of Powers and the Constitutional Law of Sentencing.
Montini on International Environmental Necessity at Oxford At Oxford's Public International Law Discussion Group, Massimiliano Montini presents Environmental Necessity in International Law.
Hill on Rating Agencies at George Mason. At George Mason, Claire Hill (Chicago-Kent School of Law) presents Rating the Rating Agencies.
Marx and Wittgenstein? Courtesy of Online Papers in Philosophy, David G. Stern has a Review of Gavin Kitching and Nigel Pleasants' (eds.)Marx and Wittgenstein: Knowledge, Morality and Politics up on Notre Dame Philosophical Reviews:
Class Action Reform at the AEI today
Bond on Many Madisons James E. Bond (Seattle University School of Law) has a review of James Madison and the Future of Limited Government on The Independent Review. Here is a taste:
Conference Announcement: The New Federalism
Wednesday, October 29, 2003
Two Talks Today My apologies to the readers of Legal Theory Blog. I neglected to post the following entries from the Legal Theory Calendar earlier today:
At Australian National University, Hilary Charlesworth presents Is International Law Relevant to the War in Iraq and its Aftermath?.
Felten on DMCA Exemptions Rulemaking Ed Felten reports on the very narrow exemptions granted for the next three years. The official scoop is here. And Ernest Miller has a great collection of links. And some more from Derek Slater here.
Rorty Reviews Posner, or what is the sound of two pragmatists clapping? Richard Rorty (pragmatist philosopher) reviews Law, Pragmatism, and Democracy by Richard Posner (pragmatist) judge. Here is a taste:
More on John Hart Ely Check out Michael Rappaport's thoughts on The Right Coast.
Welcome to the Blogosphere . . . to Lee Blog, a venture of Professor Edward Lee of Ohio State's law school and the author of the very fine Rules and Standards for Cyberspace, 77 Notre Dame L. Rev 1275 (2002). Here is a taste of what promises to be a very interesting effort:
More on Iterative Prisoner's Dilemmas: The Grim Trigger Solution Dennis O'Dea (Department of Economics, University of Illinois) writes to suggest that tit for tat is not solution for the iterative prisoner's dilemma game (as described in this past Sunday's Legal Theory Lexicon). Here are his remarks:
Subramanian on Bargaining in the Shadow of . . . Guhan Subramanian (Harvard Law School) has posted Bargaining in the Shadow of Takeover Defenses (forthcoming Yale Law Journal, Vol. 113, No. 3, December 2003) on SSRN. Here is the abstract:
Tuesday, October 28, 2003
Must Reading for Cybertheorists I was just over at Ernest Miller's The Importance Of. I just cannot say enough in praise of this wonderful blog. Miller has recent posts on the future of TIVO, the broadcast flag, next generation DVD, and a slew of other topics. Miller's blog is a reminder of the transformative possibilities of the Internet. Oh, I'd better stop now.
New Papers on the Net Here is today's roundup:
Downward Spiral of Politicization Department In the New York Times, Neil Lewis has a story titled Where the Gloves Are Nearly Always Off. Here is a taste:
Harlow on Distributed Justice at Oxford At Oxford's Faculty of Law Professor Carol Harlow QC, FBA, delivers The Clarendon Law Lectures: Towards Distributed Justice. O.K., the title got me. What is "distributed" justice?
Leiter on Law & Evolutionary Biology at George Mason This should be good! At George Mason, Brian Leiter (University of Texas, Law and Philosophy) presents Why Evolutionary Biology is (so far) Irrelevant to Law.
Rabban on Historical Jurisprudence at Texas At the University of Texas, David Rabban presents The American School of Historical Jurisprudence. Here is a taste:
Viens on Relativism and Applied Ethics at the Ockham Society At Oxford's Ockham Soceity, Adrian Viens (Oxford) presents Relativism and Applied Ethics.
Ghosh on Copyright as Privatization at Oxford's IP Seminar At Oxord's IP Seminar, Shubha Ghosh (SUNY Buffalo) presents Copyright as Privatisation.
Eleftheriadis on the Identity of Legal and Political Philosophy at Oxford At Oxford's Jurisprudence Discussion Group, Pavlos Eleftheriadis presents The Identity of Legal and Political Philosophy.
Broome on Rationality at Brown At Brown University's philosophy department, John Broome (Oxford) does the first in a series of three lectures:
Yu on the Copyright Divide Peter Yu (Michigan State University-DCL College of Law) has posted The Copyright Divide (forthcoming Cardozo Law Review, Vol. 25, 2003) on SSRN. Here is the abstract:
Tiefenbrun on the Life of a Geisha Susan Tiefenbrun (Thomas Jefferson School of Law) has posted Copyright Infringement, Sex Trafficking, and the Fictional Life of a Geisha (forthcoming Michigan Journal of Gender & Law, Vol. 10) on SSRN. Here is the abstract:
Taipale on Data Mining K. A. Taipale (Center for Advanced Studies in Science and Technology Policy) has posted Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data" (forthcoming 5 Columbia Science & Tech. Law Review (December 2003)). Here is the abstract:
Conference Announcement: Annual Meeting of the American Society for Legal History November 13 through November 16, the Annual Meeting of the American Society for Legal History, takes place in Washington, DC. Here is a the website & here is the program.
Monday, October 27, 2003
New Papers on the Net Here is today's roundup:
Karlan on Georgia v. Ashcroft The super smart and always interesting Pam Karlan has posted Georgia v. Ashcroft and the Retrogression of Retrogression. Here is the abstract:
Madison on the Narrative of Cyberspace Michael Madison (University of Pittsburgh School of Law) has posted The Narratives of Cyberspace Law (or, Learning from Casablanca) (forthcoming Columbia Journal of Law and the Arts, 2004) on SSRN. Here is the abstract:
Weekend Update This past weekend, the latest Download of the Week was a paper by Nicos Stavropoulos's entitled Interpretivist Theories of Law. The Legal Theory Bookworm recommended a pair of books by Bruce Ackerman. As always, the Legal Theory Calendar previews this weeks workshops, colloquia, and conference. Finally, the latest installment in the Legal Theory Lexicon is on the game theory and the Prisoner's Dilemma.
Hasen on the Constitutionality of Interim Redistricting Rick Hasen has a very good post on the question whether a state legislature may constitutionally redistrict in-between the decennial reapportionments mandated by the Constitution.
John Harty Ely, 1938-2003 John Hart Ely has died. The New York Times obituary can be found here:
Michael Froomkin (Ely's colleague at Miami) has some very thoughtful remarks here. And Jacob Levy has some remarks here on the Conspiracy.
David Bernstein on the Janice Brown Nominaion Over at the Conspiracy, David Brown has a point by point disucssion of the New York Times editorial opposing Janice Brown's nomination to the United States Court of Appeals. Although I might use more tempered language, I agree with almost all of the substance of Bernstein's remarks.
I worked extensively with Janice Brown several years ago when she was a member of the Commission on the Future of the California Judiciary. This was before her appointment to California Supreme Court--at the time she was serving as legal counsel to California's governor Pete Wilson. Brown was a quiet and intelligent presence on the Committee. I was serving as the author of a White Paper on alternative court structures, and towards the end of the interactive process of drafting, Brown provided several handwritten pages of sophisticated and thoughtful comments on the draft. Whatever you think about Janice Brown, you should not be hasty to reach the conclusion that she is a simple-minded blowhard for an extremist ideology. Quite the opposite, this is a quiet, sophisticated, and intellectual woman.
It is clear, however, that Janice Brown has views on a variety of matters that place her outside the center. For example, Brown questions the orthodox view that Lochner was wrongly decided. But if her views on Lochner are unorthodox, they surely are not unreasonable. If you think they are, consider the following points. First, the notion that the fourteenth amendment has, as one of its essential purposes, the promotion of a "free labor" ideology is surely at least "reasonable." The reconstruction amendments, if they had any purpose at all, were both intended and understood as establishing the principle that workers should have control over the conditions under which they enter the labor market--including the wages, hours, and terms and conditions of employment. Second, wage and hour laws impinge on worker autonomy. If you questions this premise, ask yourself how you would react if a statute limiting hours of work were imposed on you. I could not produce this blog--which I certainly view as party of my academic work--if I were limited to 8 or 10 hours of work per day. I suspect that most journalists, lawyers, and academics would view a mandatory limitation on the hours they can work as an outrageous intrusion on their liberty. (OK, some (many, almost all) associates at big frims, would welcome such a limit, although perhaps not the consequences for thier paycheck.)
Even if Brown's support for Lochner were unreasonable, it would not provide a reason for her exclusion from the federal appellate bench, unless it somehow might influence her decision making. It is simply inconcievable that a federal appellate court would revive Lochner. Why? Because the United States Courts of Appeal are bound by the doctrine of vertical stare decisis--they are required to follow Supreme Court precedent no matter how stronly they disagree with it. I am not familiar, in detail, with Brown's record on the California Supreme Court. So far as I know, there is no indication that she views herself as free to disregard Supreme Court precedent. (Update: In fact, she does regard USCA judges as bound by Supreme Court decisions.) If there is evidence that she holds such a view, it would certainly disqualify her from serving on the Court of Appeal--as it would any nominee, irrespective of their political views.
And this brings me to the big issue. Should Janice Brown's ideology be the focus of her confirmation hearings? It seems clear that whether it should be, or not, it will be the major issue upon which her nomination hangs. Charles Schumer has convinced the democratic caucus that political ideology should be the main focus of the confirmation process. Whether Brown's nomination is filibustered will depend on her ideology. But should this be the case? As frequent readers of this blog know, I believe that the politicization of the judicial selection process is not only a mistake, it is potentially a tragedy. The downward spiral of politicization that we are now experiencing can ultimately threaten the rule of law and the very great goods that it produces.
But if we do not select judges on the basis of political ideology, then what? There is a very old fashioned answer to that question. We could select judges on the basis of their possession of the judicial virtues. We could select judges who were learned in the law, who had practical wisdom, who possessed civic courage and a judicial temperment. Above all, we could select judges who have the virtue of justice--the disposition to decide the cases before them according to the rules laid down. We could select judges who were aiming at decision on the basis of the law and not on the basis of their own political ideology or views about what the law should be.
This is not an endorsement of Janice Brown. It would be irresponsible for me to endorse her nomination without a careful study of her opinions. My point is very modest. The New York Times has opposed her nomination on grounds that are unsound and harmful to the judicial selection process.
Update: More on Brown at Discriminations, here. And more here in Reason.
Vatter on Machiavelli and the Rule of the Law at Chicago At the University of Chicago's political theory series, Miguel Vatter (Northwestern University) presents Machiavelli and Republican Rule of Law, discussion by Anita Chari. Here is a taste:
Applebaum at George Mason on the Gulag At George Mason's Workshop in Philosophy, Politics, and Economics, Anne Applebaum (Journalist/Historian, Washington Post) presents The Gulag: What We Know and Why It Matters.
Yoon at Columbia on Turnover on the Federal Bench At Columbia's law and economics series, Albert H. Yoon (Northwestern University School of Law, Visiting Princeton) presents The End of the Rainbow: Understanding Turnover Among Federal Judges.
Harlow on State Liability at Oxford At Oxford, Professor Carol Harlow (QC, FBA) delivers The Clarendon Law Lectures: Perspectives on State Liability.
Stock at UCLA At UCLA, Greg Stock (UCLA School of Public Health; Director, Program on Medicine, Technology, and Society) speaks to the law faculty.
Feinman at Chicago At the University of Chicago's Law and Philosophy Workshop, Martha Fineman (Emory) is presenting. Does anyone have the title?
FOIA and Cyberrights at Stanford
Sunday, October 26, 2003
Legal Theory Lexicon: The Prisoner's Dilemma
An Example Ben and Alice have been arrested for robbing Fort Knox and placed in seperate cells. The police make the following offer to each of them. "You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice gets a heavy sentence. Likewise, if your accomplice confesses while you remain silent, he or she will go free while you get the heavy sentence. If you both confess I get two convictions, but I'll see to it that you both get light sentences. If you both remain silent, I'll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning." This is illustrated by Table One. Ben's moves are read horizontally; Alice's moves read vertically. Each numbered pair (e.g. 5, 0) represents the payoffs for the two players. Ben's payoff is the first number in the pair, and Alice's payoff is the second number.
Table One: Example of the Prisoner's Dilemma.
__________________________Confess______________Do Not Confess___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| __________Confess___|_____1, 1___________|_____0, 5___________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _____Alice_____________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ___________Do not___|_____5, 0___________|_____3, 3___________| ___________Confess__|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________
Suppose that you are Ben. You might reason as follows. If Alice confesses, then I have two choices. If I confess, I get a light sentence (to which we assign a numerical value of 1). If Alice confesses and I do not confess, then I get the heavy sentence and a payoff of 0. So if Alice confesses, I should confess (1 is better than 0). If Alice does not confess, I again have two choices. If I confess, then I get off completely and a payoff of 5. If I do not confess, we both get light sentences and a payoff of 3. So if Alice does not confess, I should confess (because 5 is better than 3). So, no matter what Alice does, I should confess. Alice will reason the same way, and so both Ben and Alice will confess. In other words, one move in the game (confess) dominates the other move (do not confess) for both players.
But both Ben and Alice would be better off if neither confessed. That is, the dominant move (confess) will yield a lower payoff to Ben and Alice (1, 1) than would the alternative move (do not confess), which yields (3, 3). By acting rationally and confessing, both Ben and Alice are worse off than they would be if they both had acted irrationally.
The Real World The prisoner's dilemma is not just a theoretical model. Here is an example from Judge Frank Easterbrook's opinion in United States v. Herrera, 70 F.3d 444 (7th Cir. 1995):
Iterated Game As described above, the prisoner's dilemma is a one-shot game. But in the real world, may prisoner's dilemmas involve repeated plays. You can imagine a series of moves, for example:
If you want to get a really good feel for the iterative prisoner's dilemma, go to this website, where you can actually try out various strategies.
One more twist. Suppose that this game is finite, i.e. it has a fixed number of moves, e.g. ten. How will Ben and Alex play in the "end game." Ben might reason as follows. If I defect and confess on the tenth move, Alice cannot retaliate on the eleventh move (because there is no eleventh round of play). And Alice might reason the same way, leading both Ben and Alice to confess in the final round of play. But now Ben might think, since it is rational for both of us to defect in the tenth round, I need to rethink my strategy in the ninth round. Since I know that Alice will confess anyway in the tenth round, I might as well confess in the ninth round. But once again, Alice might reason in exactly this same way. Before we know it, both Alice and Ben have decided to defect in the very first round.
Conclusion This has been a very basic introduction to the prisoner's dilemma, but I hope that it has been sufficient to get the basic concept across. As a first year law student, you are likely to run into the prisoner's dilemma sooner or later. If you have an interest in this kind of approach to legal theory, I've provided some references to much more sophisticated accounts. Happy modeling!
References Here are some links to game theory and prisoner's dilemma resoures on the web:
Legal Theory Calendar
At the University of Chicago's political theory series, Miguel Vatter (Northwestern University) presents Machiavelli and Republican Rule of Law, discussion by Anita Chari.
At George Mason's Workshop in Philosophy, Politics, and Economics, Anne Applebaum (Journalist/Historian, Washington Post) presents The Gulag: What We Know and Why It Matters.
At Columbia's law and economics series, Albert H. Yoon (Northwestern University School of Law, Visiting Princeton) presents The End of the Rainbow: Understanding Turnover Among Federal Judges.
At Oxford, Professor Carol Harlow (QC, FBA) delivers The Clarendon Law Lectures: Perspectives on State Liability.
At UCLA, Greg Stock (UCLA School of Public Health; Director, Program on Medicine, Technology, and Society) speaks to the law faculty.
At the University of Chicago's Law and Philosophy Workshop, Martha Fineman (Emory) is presenting. Does anyone have the title?
At the University of Texas, David Rabban presents The American School of Historical Jurisprudence.
At Oxford's Ockham Soceity, Adrian Viens (Oxford) presents Relativism and Applied Ethics.
At Oxord's IP Seminar, Shubha Ghosh (SUNY Buffalo) presents Copyright as Privatisation.
At Oxford's Jurisprudence Discussion Group, Pavlos Eleftheriadis presents The Identity of Legal and Political Philosophy.
And finally, also at Oxford's Faculty of Law Professor Carol Harlow QC, FBA, delivers The Clarendon Law Lectures: Towards Distributed Justice.
At Brown University's philosophy department, John Broome (Oxford) does the first in a series of three lectures:
At Australian National University, Hilary Charlesworth presents Is International Law Relevant to the War in Iraq and its Aftermath?.
At NYU's Colloquium in Legal, Political and Social Philosophy, Mattias Kumm (NYU School of Law) presents Towards a Constitutional Theory of the Relationship between National and International Law.
At Boston University, Wendy Gordon presents Rendering Copyright Unto Caesar: Free Speech, Locke, and the Sphere of Gift.
At the University of Texas, William Galston (University of Maryland) presents the Alexander Terrell Centennial Endowed Lecture: Structures of Diversity: Political Pluralism and the Limits of Public Power.
At the University of Michigan's law and economics series, Michael Klausner (Stanford) presents Discounting Future Charity: An Analysis of Foundation Payout Rates and their Regulation & When Time is Not Money: Foundation Payouts and the Time Value of Money.
At Florida State University, B.J. Priester (FSU College of Law) presents The Separation of Powers and the Constitutional Law of Sentencing.
At George Mason, Claire Hill (Chicago-Kent School of Law) presents Rating the Rating Agencies.
At Oxford's Public International Law Discussion Group, Massimiliano Montini presents Environmental Necessity in International Law.
At the University of North Carolina philosophy speakers series, Jeremy Waldron (Sheps Distinguished Visitor) presents The Primacy of Justice.
At the University of Bristol, Mike Otsuka (UCL) presents Scepticism About Saving the Greater Number.
University of Pennsylvania philosophy colloquium, Ulrike Heuer (Penn) presents Reasons and Oughts.
Conference on Pluralism at Vanderbilt
Saturday, October 25, 2003
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends two books by Bruce Ackerman:
The theory that Ackerman develops has the paradoxical quality of leading to two, seemingly contradictory ideas. First, by emphasizing popular sovereignty, Ackerman's view of constitutional history is a sibling of constitutional originalism--the idea that the meaning of the constitution is grounded in the meaning it had to the generation that adopted it. Second, by emphasizing the extralegal and political processes by which popular sovereignty operates, Ackerman identifies three great periods of constitutional change, the founding, the reconstruction, and the New Deal. It is this last period that puts Ackerman's views in tension with those of most other originalists. While right originalism is hostile to the New Deal Court--decrying the erasure of limits on federal power as the interpretative equivalent of constitutional redaction, Ackerman sees the New Deal Court as the product of the transformative appointments by F.D.R., a President who received an extraordinary mandate from the people. In my words, not Ackerman's, the view is that Roosevelt was the Tribune of the People, granted powers of Constitutional revision which he exercised by appointing Justices delegated the power to revise through construction.
Ackerman's theory is hugely controversial, but Ackerman himself has had a transformative effect on the legal academy. Before Ackerman originalism was seen by many as a sectarian doctrine--limited in influence to the intellectual right. After Ackerman, originalist ideas began a process of diffusion. When I was in law school, the prevailing view was that Paul Brest had nailed originalism to the cross in his famous article, The Misconceived Quest for the Original Understanding. Today, originalism is resurrected and might fairly be characterized as ascendant or even as the dominant view in the legal academy.
If you are interested in Constitutional theory, you must read Ackerman!
Download of the Week The download of the week is Nicos Stavropoulos's paper, Interpretivist Theories of Law. Interpretivism, the theory of law associated with Ronald Dworkin, is one of the most important, original, and controversial views in contemporary legal theory. Stavorpolous has done a marvelous job of pulling the arguments together in this essay, intended as an entry in the Stanford Internet Encyclopedia of Philosophy. Here is how it begins:
Friday, October 24, 2003
Green on Kelsen Michael Green (George Mason University - School of Law) has posted Hans Kelsen and the Logic of Legal Systems (forthcoming Alabama Law Review, Vol. 54, pp. 365-413, 2003) on SSRN. Here is the abstract:
Baird and Rasmussen Put Bankruptcy to Bed Douglas Baird and Robert Rasmussen (University of Chicago Law School and Vanderbilt University School of Law) have posted Chapter 11 at Twilight (forthcoming Stanford Law Review, 2003) on SSRN. Here is the abstract:
Mark Greenberg to UCLA Brian Leiter reports that Mark Greenberg, currently at Princeton in Philosophy, has accepted an offer from UCLA in law and philosophy.
Scalia on Lawrence v. Texas The Washington Post story is here. And here is an excerpt:
Conference on Law & Philosophical, Psychological, Linguistic, and Biological Perspectives Today At IIT-Chicago-Kent, a conference entitled Law &: Philosophical, Psychological, Linguistic, and Biological Perspectives on Legal Scholarship.
Brown on Mobilizing Straights for Gays at UCLA At UCLA, Jennifer Brown (Quinnipiac Law School) presents Straightforward: Mobilizing Heterosexual Support for Gay Rights.
Pincione on Political Deliberation at Tulane At Tulane's Center for Ethics and Public Affairs Guido Pincione (Universidad Torcuato Di Tella) presents Principles and Consequences in Political Deliberation.
Caron on the Compensation Commission at Floriday State At Florida State, David Caron (University of California, Berkeley) presents Lessons from the United Nations Compensation Commission for Claims Arising Out of the 1990 Gulf War.
Bolton on Concepts at Pittsburgh At the University of Pittsburg's Program of Classics, Philosophy & Ancient Science, Rob Bolton (Rutgers University) presents Concepts and Conceptual Knowledge in Aristotle.
DeRose on Deliberation at Arizona At the University of Arizona philosophy colloquium, Keith DeRose (Philosophy, Yale University) presents The Conditionals of Deliberation.
Rawls and the Law at Fordham in Two Weeks Rawls and the Law, November 7 & 8, Fordham University School of Law. The lineup for this exciting event includes Ronald Dworkin, James E. Fleming, Frank I. Michelman, Lawrence G. Sager, T.M. Scanlon, Charles A. Kelbley, Linda C. McClain, Marion Smiley, Susan Moller Okin, Tracy E. Higgins, Anita L. Allen, Tommie Shelby, Seana Shiffrin, Sheila R. Foster, Seyla Benhabib, Stephen Macedo, Thomas W. Pogge, Martin S. Flaherty, George P. Fletcher, Gregory C. Keating, Stephen R. Perry, Arthur Ripstein, Benjamin C. Zipursky, Anne L. Alstott, Robert D. Cooter, Thomas Nagel, Linda F. Sugin, Samuel Freeman, Abner S. Greene, David A. J. Richards, Dennis Thompson, and Michael Baur.
And speaking of Rawls, check out this interview from a few years back. Pointer courtesy of Political Theory Daily Review.
Thursday, October 23, 2003
Nozick and No Fault Toby Handfield has posted a paper entitled Nozick, prohibition, and no-fault motor insurance (forthcoming in Journal of Applied Philosophy). Here is a tiny morsel:
Elhauge on Statutory Interpretation at the University of San Diego At the University of San Diego/University of California at San Diego, Law, Economics and Politics Workshop, Einer Elhauge (Harvard) is presenting Preference-Estimating Statutory Default Rules.
Wolf on the Meaning of Life at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Susan Wolf (University of North Carolina, Philosophy) presents "The Meanings of Lives" & "The True, the Good and the Lovable: Frankfurt's Avoidance of Objectivity".
Jones on Behavioral Biology at Michigan At the University of Michigan's Law and Economics series, Owen Jones (Arizona State) is presenting Law and Behavioral Biology.
Heller on Land Assembly at Boston University At Boston University, Michael Heller (Lawrence A. Wien Professor of Real Estate Law, Columbia Law School) presents The Art of Land Assembly (with Rick Hills).
Huigens on a Coherence Model of Justified Punishment at Penn At the University of Pennsylvania's law and philosophy series Kyron Huigens (Cardozo Law School) presents A Specification to Coherence Model of Punishment's Justification. I find Huigens's work to be very interesting!
Scheffler at Yale on Equality At Yale's philosophy department, Samuel Scheffler presents Choice, Circumstance, and the Value of Equality.
Ridge on Moral Knowledge & Default Principles at Bristol At the University of Bristol, Michael Ridge (Edinburgh) presents Betting on Hedges: From Moral Knowledge to Default Principles.
Bratman on Practical Reasoning at Harvard At Harvard's philosophy colloquium, Michael Bratman (Stanford) presents Shared Valuing and Frameworks for Practical Reasoning.
Sarnikar on Cybersecurity at George Mason At George Mason Law, Supriya Sarnikar (GMU School of Law Levy Fellow) presents Cybersecurity in the National Market System.
Friedman on Common Law Marriage at UCLA At UCLA's legal history series, Lawrence Friedman (Stanford) presents The Rise and Fall of Common Law Marriage.
Kukathas on Justice at ANU At the Australian National University, Research School of Social Science, Philosophy Seminars, Chandran Kukathas (University of Utah) presents Justice, Toleration, Peace and Reason.
Alexandra on Hobbes at Melbourne At the University of Melbourne, Andrew Alexandra presents Hobbes and The Foole.
Grenberg on Kantian Virtue at Herfordshire At the University of Hertfordshire Centre for Normativity and Narrative, Jeanine Grenberg (St Olaf College, Minnesota & Hertfordshire) presents A Kantian Account of Virtue.
Liu on Trademark Defenses at Georgetown At Georgetown's Colloquium on Intellectual Property & Technology Law, Joseph P. Liu (Boston College of Law) presents Rationalizing Trademark Defenses.
Arkes on Power and the Legal Professoriate In the Seattle Post-Intelligencer, Hadley Arkes has an op/ed entitled Moral truths are necessary in evolution of law. Here is a taste:
Wednesday, October 22, 2003
Welcome to the Blogosphere . . . to En banc, a new group blog with Unlearned Hand (Unlearned Hand), PG (Half the Sins of Mankind) Jeremy Blachman (Jeremy's Weblog), Greg Goelzhauser (Law and Economics), Ambimb (Ambivalent Imbroglio), Chris Geidner (Law Dork), Johnny Bardine (Truth is a Blog) and Max Rosenthal (Dead Ends). Well, this is quite a group!
Abolish Life Tenure? Norm Ornstein suggests the abolition of life tenure in a Roll Call oped (subscription required). (Thanks to Rick Hasen of Election Law Blog for the pointer.) Here is the gist of his argument:
Interestingly, however, the existing constitutional structure permits the abolition of life tenure without a constitutional amendment. How? Through the use of the recess appointments clause. The clause reads: "“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2, cl. 3." By making appointments at the recess before the start of one term, the President can effectively give these temporary judges tenure that lasts for two full terms of the Senate. Of course, these terms are short of the 12-15 years that Ornstein recommends, but what justifies longer terms if the judiciary is merely a third political branch? For more on this, see my post entitled Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts.
The real message of Ornstein's op/ed is not that we should abolish life tenure--rather, it is that the current downward spiral of politicization that characterizes both the practice of judging and judicial selection is incredibly dangerous. Before we give into politicization, we ought to give serious consideration to the alternative. Judging can be politicized, but it does not have to be. Legal realism is not an eternal truth about the nature of judging. Rather, judges have a choice. They can choose to make decisions instrumentally, bending the law to their politics and preferences. Or they can choose the path of judicial integrity--making adherence to the law and care for its coherence an overriding value in the practice of judging. Politicization is not inevitable. It is the product of our choices. For more, see A Neoformalist Manifesto.
Arlen on Malpractice at Northwestern At Northwestern Law, Jennifer Arlen (New York University School of Law) presents Malpractice Liability for Physicians and Managed Care Organizations.
Riordan on Religion in Public Discourse At Heythrop College, London, Patrick Riordan (Heythrop) presents Religion in Public Discourse.
Conference on Reasonable Partiality Today through October 24, The Netherlands School for Research in Practical Philosophy is presenting a conference on Reasonable Partiality at Vrije Universiteit, Amsterdam, The Netherlands.
Kelly on Liberal Political Theory At the University College, London, Paul Kelly (LSE) presents How Political is Liberal Political Theory?
Rob Allen on Crime and Punishment at All Souls At Oxford's Centre for Crimonological Research Seminar Series, Rob Allen (Director, Esmée Fairbairn Foundation) presents Rethinking Crime and Punishment. The venue is All Souls.
Game Theory and the Maximization Assumption I've just read a very interesting paper by Aviad Heifetz (School of Economics, Tel Aviv University), Chris Shannon (Department of Economics, University of California, Berkeley) and Yossi Spiegel (Faculty of Management, Tel Aviv University). The title is What to Maximize if You Must. Here is the abstract:
Cooter and Ginsburg on Leximetrics Robert Cooter and Thomas Ginsburg (University of California at Berkeley School of Law and University of Illinois College of Law) have posted Leximetrics: Why the Same Laws are Longer in Some Countries than Others on SSRN. Here is the abstract:
Jackson on Accounting for Social Security Reform Howell Jackson (Harvard Law School) has posted Accounting for Social Security and Its Reform (forthcoming in the Harvard Journal on Legislation, Winter 2004) on SSRN. Here is the abstract:
Frey and Stutzer on Direct Democracy Bruno Frey and Alois Stutzer (University of Zurich - Institute of Empirical Research in Economics (IEW) and University of Zurich - Institute of Empirical Research in Economics (IEW)) have posted Direct Democracy: Designing a Living Constitution on SSRN. Here is the abstract:
Tuesday, October 21, 2003
Stavropoulos at Oxford At Oxford's Jurisprudence Discussion Group, Nicos Stavropoulos presents Interpretivist Theories of Law. Here is a taste:
Arlen at Chicago At the University of Chicago's Olin Series, Jennifer Arlen (New York University Law School) presents Unregulable Defenses and the Perils of Shareholder Choice coauthored with Eric Talley. Here is the abstract:
Seto on a General Theory of Normativity Theodore Seto (Loyola Marymount University-Loyola Law School) has uploaded A General Theory of Normativity to SSRN. Here is the abstract:
Jo Wollf at University College At University College, London, Jonathan Wolff (UCL) presents Fear and Loathing at St Pancras: The Ethics and Economics of Railway Safety.
Brooks at the Ockham Society At Oxford's Ockham Society, Thom Brooks (Sheffield) presents A Defence of Jury Nullification.
International Humanitarian Law at ANU At Australian National University's Faculty of Law, a one day conference entitled The Relevance of Rights: Refugees, international humanitarian law and human rights in today's world.
Polsky on Treasury's Power to Overrule the Supreme Court Gregg Polsky (University of Minnesota School of Law) has posted Can Treasury Overrule the Supreme Court? (forthcoming in the Boston University Law Review, Vol. 84, 2004) on SSRN. Here is the abstract:
Adler on Transitions Matthew Adler (University of Pennsylvania Law School) has posted Legal Transitions: Some Welfarist Remarks (forthcoming in the Journal of Contemporary Legal Issues, Vol. 13, 2003) on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Monday, October 20, 2003
Weekend Wrap Up From Saturday, you will find the Download of the Week and the Legal Theory Bookworm. If you click through or scroll down, on Sunday you will find the Legal Theory Calendar and this week's Legal Theory Lexicon.
Kramer at Northwestern At Northwestern Law, Larry Kramer (New York University School of Law) presents The People Themselves: Popular Constitutionalism and Judicial Review. Here is a taste:
McCormick at Chicago At the University of Chicago's Political Theory Workshop, John McCormick, University of Chicago, Tempering the Grandi’s Appetite to Opress: The Dedication and Intention of Machiavelli’s Discourses, with discussion by Ian Needham.
Greaney at Loyola At Loyola Marymount, Loyola Law School, Thomas L.Greaney (Professor of Law and Co-Director, Center for Health Laws Studies, St. Louis University School of Law) presents Chicago’s Procrustean Bed: Applying Antitrust Law in Health Care.
Bilder at Alabama Mary Sarah Bilder of Boston College Law School will present her paper Constitutional Lawyering Before the Constitution at the University of Alabama law faculty colloquium today.
Walzer at Penn Michael Walzer is speaking today at the University of Pennsylvania--his title, Justifying War.
Caplan at George Mason At George Mason's Workshop in Philosophy, Politics, and Economics, Bryan Caplan (Economics, George Mason University) presents Mises, Bastiat, Public Opinion and Public Choice: What’s Wrong with Democracy?.
Skinner at Princeton At Princeton's Political Philosophy Colloquium, Quentin Skinner (Cambridge University) presents Thomas Hobbes as a Theorist of Representative Government.
Bilder at Alabama Mary Sarah Bilder of Boston College Law School will present her paper Constitutional Lawyering Before the Constitution at the University of Alabama law faculty colloquium.
Review of Epstein Ronald J. Terchek has a review of Skepticism and Freedom: A Modern Case for Classical Liberalism by Richard Epstein. Here is a taste of the review:
Helfer on the Intersection Between Intellectual Property and Human Rights Laurence Helfer (Loyola Marymount University-Loyola Law School) has posted Human Rights and Intellectual Property: Conflict or Coexistence? (forthcoming Minnesota Intellectual Property Review, Fall 2003) on SSRN. Here is the abstract:
Bainbridge on the Race to the Bottom Stephen Bainbridge has some marvelously lucid and interesting comments on Bebchuk and Cohen's Firms’ Decisions Where to Incorporate.
Calabresi on the Balanance Between State and Federal Courts Judge Guido Calabresi's essay, Federal and State Courts: Restoring the Balancing, 78 N.Y.U. L. Rev. 1293 (2003) is just up on Westlaw. Here is a taste:
2. Criminal law: These cases usually belong in state courts, even if they involve federal crimes, so long as the crime is parallel to one that exists in the state. Reverse certification to federal courts is encouraged if a separate and undecided federal question arises.
3. Private law: Federal courts are the "appellate division" for diversity cases and other cases involving state laws. Certification to the states is, therefore, called for . . . after the federal court has indicated how it would decide the case if certification is refused. The state courts are then free to accept certification or not as they choose.
4. Federal rights against state actors: De novo or original consideration in federal courts is appropriate, with certification to states for state law interpretation and with frequent use of European-style passive virtues applied to such "collateral" constitutional reviews. (I am here incorporating by reference, because I don't have time to describe them tonight, the many devices by which the European constitutional courts avoid deciding constitutional questions too soon.)
Conference Announcement: Class Action Reform
Defining Terrorism Check out this op/ed by George Fletcher (Columbia, Law). Here is a taste:
Sunday, October 19, 2003
Legal Theory Lexicon: The Veil of Ignorance
Introduction This installment in the Legal Theory Lexicon is intended to introduce law students (especially first years) to "the veil of ignorance"--an idea from political philosophy that has had an important influence on legal theory.
From the Ex Ante Perspective to the Veil of Ignorance The very first installment in the Legal Theory Lexicon was on the ex post/ex ante distinction. Law students quickly learn that law school focuses more about the normative ("Is it a good rule?") than the descriptive ("What is the rule?"). ("Just give me the black letter law!" is a cry in the wilderness!) Once you've learned that lesson, another one quickly follows. (Either it creeps up on you, or perhaps it just hits in one of those glorious a ha moments!) The legal academy (and hopefully your section) is full of different (radically different) perspectives on normative questions about the law. The ex ante/ex post distinction is all about normative perspective. We can look at legal rules ex post (backwards from the present), and ask, "Does this rule provide a fair resolution of this particular controversy?" Of we can look at legal rules ex ante (forward from the present) and ask, "Will the adoption of this rule produce good consequences if applied to similar situations in the future?" The move to the ex ante perspective is the crucial move made by consequentialist legal theories--and in particular, by normative law and economics.
But there is another important perspective on legal rules that is not captured by the ex post/ex ante perspective. This alternative perspective is frequently associated with the twentieth century's most important political philosopher, the late John Rawls. Rawls is famous for his book, A Theory of Justice, which argued for two principles of justice (the liberty principle and the difference principle) using a striking thought experiment called "the original position." The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance. That is, the representatives are deprived of information about the talents, abilities, and socio-economic status of the parties they represent. Rawls saw the original position as an improved and generalized form of the "state of nature" that Hobbes, Rousseau, and Locke used as the choice situation for the adoption of a social contract. Rawls's basic intuition was that the state of nature allowed morally irrelevant factors--e.g. the strategic advantages of the strong and cunning--to determine the content of the social contract. The point of the veil of ignorance is to filter out these factors, yielding a fair choice situation. Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chose in the original position from behind the veil of ignorance?"
Going Behind the Veil, Part One So how do you use the veil of ignorance when doing legal theory? I want to start with a very simple answer to that question (in Part One), then we will introduce some objections and clarifications, and give a more complicated answer (n Part Two). So here goes.
"Going behind the veil of ignorance" means performing a thought experiment. You ask yourself: "What legal rule would I choose if I didn't know such and such information." Right away, you see that we must fill in the blank! What information is placed behind the veil of ignorance. Let me give some examples:
(2) The government pays for all lawyers. Some socialist systems provide for this rule.
(3) If the plaintiff wins, the defendant pays for both the plaintiff's and the defendant's lawyer, but if the defendant wins, each side pays for its own lawyer. This is the rule that currently prevails under several statutes, e.g. 28 U.S.C. Section 1983.
(4) The loser pays for its own lawyer and for the winners lawyer. This is the so-called English rule.
Objections The veil of ignorance is a controversial tool. So its worth our while to briefly scan some of the objections to its employment:
Back to the Classroom So if you are a theoretically inclined first-year law student, how can you use the veil of ignorance. Here is my suggestion. At least some of the time, when you are reading and thinking about a morally interesting case--one where you say, this case involves questions about fairness--ask yourself the following three questions: (1) ex post, which rule provides the fair resolution of this controversy; (2) ex ante, which rule would produce the best consequences if applied to similar cases in the future, and (3) from behind the veil of ignorance, which rule would I choose if I didn't know whether I was the plaintiff or the defendant? Sometimes, as you begin to answer that third question, you will find yourself interested by the questions as to who is behind the veil of ignorance, what they know, when they decide, and how they deliberate. Spend a few minutes thinking about those questions, and you may find that you have a deeper understanding of the concerns of principle or fairness that are relevant to the case.
A cautionary note: The veil of ignorance is controversial. In some classrooms, an attempt to introduce the veil into a classroom discussion will be welcomed; in others, you will draw a withering stare or a dismissive comment. Go with the flow!
Legal Theory Calendar
At George Mason's Workshop in Philosophy, Politics, and Economics, Bryan Caplan (Economics, George Mason University) presents Mises, Bastiat, Public Opinion and Public Choice: What’s Wrong with Democracy?.
At Loyola Marymount, Loyola Law School, Thomas L.Greaney (Professor of Law and Co-Director, Center for Health Laws Studies, St. Louis University School of Law) presents Chicago’s Procrustean Bed: Applying Antitrust Law in Health Care.
At Princeton's Political Philosophy Colloquium, Quentin Skinner (Cambridge University) presents Thomas Hobbes as a Theorist of Representative Government.
At the University of Chicago's Political Theory Workshop, John McCormick, University of Chicago, Tempering the Grandi’s Appetite to Opress: The Dedication and Intention of Machiavelli’s Discourses, with discussion by Ian Needham.
Mary Sarah Bilder of Boston College Law School will present her paper Constitutional Lawyering Before the Constitution at the University of Alabama law faculty colloquium.
At UCLA, Edmund G. Brown, Jr., (Mayor of Oakland) speaks to the law school faculty.
Update: Michael Walzer is speaking at the University of Pennsylvania--his title, Justifying War.
At the University of Chicago's Olin Series, Jennifer Arlen (New York University Law School) presents Unregulable Defenses and the Perils of Shareholder Choice coauthored with Eric Talley.
At University College, London, Jonathan Wolff (UCL) presents Fear and Loathing at St Pancras: The Ethics and Economics of Railway Safety.
At Oxford's Ockham Society, Thom Brooks (Sheffield) presents A Defence of Jury Nullification.
At Australian National University's Faculty of Law, a one day conference entitled The Relevance of Rights: Refugees, international humanitarian law and human rights in today's world.
At Heythrop College, London, Patrick Riordan (Heythrop) presents Religion in Public Discourse.
At the University College, London, Paul Kelly (LSE) presents How Political is Liberal Political Theory?
Today through October 24, The Netherlands School for Research in Practical Philosophy is presenting a conference on Reasonable Partiality at Vrije Universiteit, Amsterdam, The Netherlands.
At Oxford's Centre for Crimonological Research Seminar Series, Rob Allen (Director, Esmée Fairbairn Foundation) presents Rethinking Crime and Punishment. The venue is All Souls.
At Boston University, Michael Heller (Lawrence A. Wien Professor of Real Estate Law, Columbia Law School) presents The Art of Land Assembly (with Rick Hills).
At Georgetown's Colloquium on Intellectual Property & Technology Law, Joseph P. Liu (Boston College of Law) presents Rationalizing Trademark Defenses.
At the University of San Diego/University of California at San Diego, Law, Economics and Politics Workshop, Einer Elhauge (Harvard) is presenting.
Update: At the University of Pennsylvania's law and philosophy series Kyron Huigens (Cardozo Law School) presents A Specification to Coherence Model of Punishment's Justification.
At UCLA's legal history series, Lawrence Friedman (Stanford) presents The Rise and Fall of Common Law Marriage.
At the University of Michigan's Law and Economics series, Owen Jones (Arizona State) is presenting Law and Behavioral Biology.
At George Mason Law, Supriya Sarnikar (GMU School of Law Levy Fellow) presents Cybersecurity in the National Market System.
At the Australian National University, Research School of Social Science, Philosophy Seminars, Chandran Kukathas (University of Utah) presents Justice, Toleration, Peace and Reason.
At Harvard's philosophy colloquium, Michael Bratman (Stanford) presents Shared Valuing and Frameworks for Practical Reasoning.
At Yale's philosophy department, Samuel Scheffler presents Choice, Circumstance, and the Value of Equality.
At the University of Bristol, Michael Ridge (Edinburgh) presents Betting on Hedges: From Moral Knowledge to Default Principles.
At the University of Hertfordshire Centre for Normativity and Narrative, Jeanine Grenberg (St Olaf College, Minnesota & Hertfordshire) presents A Kantian Account of Virtue.
Update: At the University of Melbourne, Andrew Alexandra presents Hobbes and The Foole.
At IIT-Chicago-Kent, a conference entitled Law &: Philosophical, Psychological, Linguistic, and Biological Perspectives on Legal Scholarship.
At UCLA, Jennifer Brown (Quinnipiac Law School) presents Straightforward: Mobilizing Heterosexual Support for Gay Rights.
At Tulane's Center for Ethics and Public Affairs Guido Pincione (Universidad Torcuato Di Tella) presents Principles and Consequences in Political Deliberation.
At the University of Pittsburg's Program of Classics, Philosophy & Ancient Science, Rob Bolton (Rutgers University) presents Concepts and Conceptual Knowledge in Aristotle. At the University of Arizona, Keith DeRose (Philosophy, Yale University) presents The Conditionals of Deliberation.
Saturday, October 18, 2003
Legal Theory Bookworm If any single area of doctrinal specialization has grown dramatically in importance in the young new millennium, it is election law. The recent California recall controversy and the anticipated decision by the Supreme Court in the BCRA litigation are the most recent examples, but the case that brought the importance of election law home was, of course, Bush v. Gore--perhaps the most controversial Supreme Court decision since Roe v. Wade. So I was especially excited to receive my review copy of Richard L. Hasen's new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (Barnes & Noble has it at a discount, and the NYU Press page is here). (Hasen is, of course, the author of the Election Law Blog.) Here is a short description of the book:
Download of the Week This week, the download of the week is Jacob Levy's paper Ancient and Modern Constitutionalism Revisited. Here is a taste:
Today at the University of London: Faith Community and the Common Good
Friday, October 17, 2003
Must Read! Martha C. Nussbaum has a piece in the Boston Review entitled Tragedy and Justice: Bernard Williams remembered. If you have any interest in contemporary moral and political philosophy, this is a must read. It is full of concise and lucid prose that compactly describes Williams's arguments and situates them in the philosophical landscape.
Bertram on Otsuka's Libertarianism Without Inequality Over at Crooked Timber, Chris Bertram reports on Mike Otsuka's new book, Libertarianism Without Inequality. I spent a sabbatical several years ago as a visiting scholar in the Philosophy Department at UCLA, where I sat in on one of Mike's first seminars--really first rate. I look forward to the book! Here is a taste from Chris's post:
Recount News Here.
Rawls and the Law at Fordham in Three Weeks Rawls and the Law, November 7 & 8, Fordham University School of Law. The lineup for this exciting event includes Ronald Dworkin, James E. Fleming, Frank I. Michelman, Lawrence G. Sager, T.M. Scanlon, Charles A. Kelbley, Linda C. McClain, Marion Smiley, Susan Moller Okin, Tracy E. Higgins, Anita L. Allen, Tommie Shelby, Seana Shiffrin, Sheila R. Foster, Seyla Benhabib, Stephen Macedo, Thomas W. Pogge, Martin S. Flaherty, George P. Fletcher, Gregory C. Keating, Stephen R. Perry, Arthur Ripstein, Benjamin C. Zipursky, Anne L. Alstott, Robert D. Cooter, Thomas Nagel, Linda F. Sugin, Samuel Freeman, Abner S. Greene, David A. J. Richards, Dennis Thompson, and Michael Baur.
Araiza on the Power of Congress Pursuant to Section 5 of the 14th William Araiza (Loyola Marymount University-Loyola Law School) has uploaded Court, Congress and Equal Protection: What Brown Teaches Us about the Section 5 Power (forthcoming Howard Law Journal) on SSRN. Here is the abstract:
Liu on the DMCA and Scientific Research Joseph Liu (Boston College has posted The DMCA and the Regulation of Scientific Research (Berkeley Technology Law Journal, Vol. 18, Spring 2003) on SSRN. Here is the abstract:
Mutua at Buffalo At SUNY Buffalo, Athena Mutua does an internal workshop entitled Kenya's Regime Change and Constitutional Review Process: Prospects for Women's Solidarity Across Religious Difference and Increased Political Participation.
Young at UCLA
At UCLA, Ernest Young (University of Texas School of Law) presents The Ordinary Diet of the Law': Federal Preemption and State Autonomy.
International Labor Law Conference In London, Ontario, Canada, the International Labour Law Conference starts today.
Courtesy of Online Papers in Philosophy, Carla Bagnoli has a new paper entitled Phenomenology of the Aftermath: Ethical Theory and the Intelligibility of Moral Experience. Here is a taste:
Corporate Law Conference at Vanderbilt At Vanderbilt, a conference entitled Who Makes Corporate Law? There will be papers presented by Professors Mark Roe, Marcel Kahan, Lucian Bebchuk, Guhan Subramanian, Vice-Chancellor Leo Strine, Jonathan Macey, and Robert Thompson and comments from Professors Edward Rock, Donald Langevoort, Craig Pirrong, Ehud Kamar, Edward Kitch, Steve Bainbridge, Lynn Stout, and Bill Bratton.
Conference on Sovereignty and the Right to Death at Cleveland Marshall At Cleveland-Marshall College of Law, a conference entitled Sovereignty and the Right to Death with Lauren Berlant, Robert Bernasconi, Drucilla Cornell, Simon Critchley, Costas Douzinas, Peter Fitzpatrick, Peter Goodrich, Anselm Haverkamp, Tayyab Mahmud, Achille Mbembe, J. Hillis Miller, Andrew Norris, Austin Sarat, Denise Ferreira da Silva, and Johan van der Walt, among others.
Ivanhoe at Boston University At Boston University's philosophy series P.J. Ivanhoe (University of Michigan) presents The Values of Spontaneity.
Call for Papers: Society for Applied Philosophy
Call for Papers: Environmental Justice and Global Citizenship
Conference Announcement: Socio-Legal Studies Association The annual conference of the Socio-Legal Studies Association will be held April 6-8, 2004 at the School of Law at the University of Glasgow. For information visit www.law.gla.ac.uk/slsa2004/.
Welcome to the Blogosphere . . . to Ernest Miller (of Law Meme) who now is flying solo at The Importance Of.
New Papers on the Net Here is today's roundup:
Thursday, October 16, 2003
Pratt on the Deductability of Fertility Treatment Katherine Pratt (Loyola Marymount University-Loyola Law School) has a very interesting article, Inconceivable? Deducting the Costs of Fertility Treatment, just up on SSRN. Here is the abstract:
More on the Recusal Fence
Bogart Disagrees Attorney/philosopher John Bogart writes:
What you seem to suggest is that Scalia first calculate the outcome of the case and then decide if his participation creates an appearance of unfairness. Do you draw the line at active efforts to determine the outcome of the case? If it is mere guessing on general attitudes, it is pretty much pointless. If it is more, either he is attempting to influence the outcome, or other judges need to recuse themselves. As I am in the middle of getting expert reports out, I have not given this enough thought, but that's the risk of blogging.
Anderson on the Ethics of Getting Off the Fence From Thus Blogged Anderson, Andy Lowry has this interesting comment:
More on Ties For those with an interest in ties in the Supreme Court, here are two law review articles that are quite helpful:
Klerman at Stanford At Stanford's Olin series, Dan Klerman (University of Southern California Law School) presents The Value of Judicial Independence: Evidence from Eighteenth-Century England.
Van Alstyne at San Diego At the University of San Diego, William Van Alstyne presents Federalism Decisions and the Rehnquist Court.
Baker at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Edward Baker (University of Pennsylvania) presents an excerpt from Constitutional and Philosophical Foundations of Libertarian Socialism.
Hylton at Boston University At Boston University, Keith Hylton presents Products Liability and Preemption: A Positive Theory.
Lichtman at Michigan At the University of Michigan's Law and Economics series, Doug Lichtman (Chicago) presents Rethinking Prosecution History Estoppel.
Moore at George Mason At George Mason, Kimberly Moore (GMU School of Law) presents David & Goliath in the U.S. Patent System.
Tarlock at Florida State Today and tomorrow at Florida State, Daniel Tarlock (Chicago-Kent College of Law) presents Hyper-rationality in the Age of Chaos: The Case of the U.S. Army Corps of Engineers.
MacCoun at Northwestern Update: At Northwestern, Robert MacCoun (University of California, Berkeley, School of Law) presents The Varieties of Marijuana Prohibition: Do Laws Influence Drug Use?.
The Pacific Northwester Political Science Association Starts Today in Vancouver In Vancouver, British Columbia, thePacific Northwest Political Science Association Annual Meeting today through the 18th.
Association for Feminist Ethics and Social Theory in Clearwater Beach Today through the 19th, the Association for Feminist Ethics and Social Theory meets in Clearwater Beach, Florida.
Call for Papers: International Justice
Conference Announcement: Virtue Epistemology at Stirling
Wednesday, October 15, 2003
Sitting on the Recusal Fence
Further Thoughts About Recusal and Ties So how should knowledge about the likely configuration of votes affect the recusal decision. Here are few additional thoughts:
Of course, members of a court are unlikely to be perfect predictors of the votes of their colleagues. And some judges are likely to be better at this than others. And the likelihood that a particular judge might be the swing/tie-breaking vote is just one of many factors that should figure into the decision whether to get off the recusal fence.
Read Volokh's fine post.
Brian Barry at the University of London Today at the University of London, Brian Barry (Columbia) presents Does Responsibility Undermine Equality?.
Schizer at Northwestern Today at Northwestern University School of Law, David Schizer (Columbia University Law School) presents Scaling Up and the Taxation of Risky Investments: Derivatives and the Search for Practical Applications.
Yen on Aggressive Copyright Claims Alfred Chueh-Chin Yen (Boston College - Law School) has posted Eldred, the First Amendment, and Aggressive Copyright Claims (forthcoming Houston Law Review) on SSRN. Here is the abstract:
Two Classics On Notre Dame Philosophical Reviews, Mark Timmons has a Review of H.A. Prichard's Moral Writings and W.D. Ross' The Right and the Good There are both classic works of twentieth century moral philosophy. Here is a taste from the Timmons review:
Two by Claire Hill Claire Hill (Georgetown University Law Center) has two new papers up on SSRN:
Hammond on Expectations and Consent Celester Hammond's article The (Pre) (As) Sumed "Consent" of Commercial Binding Arbitration Contracts: An Empirical Study of Attitudes and Expectations of Transactional Lawyers has just become available on Westlaw. Here is a taste:
Practical Reason Courtesty of Online Papers in Philosophy, Jay Wallace has a new entry in the Stanford Encyclopedia of Philosophy entitled Practical Reason. Here is a taste:
Call for Papers: British Society for Ethical Theory
New Papers on the Net Here is today's roundup:
Some Developments to the ne bis in idem Principle in the European Union: Criminal Proceedings Against Huseyn Gozutok and Klaus Brugge Modern Law Review, Vol. 66, pp. 769-780, September 2003 Maria Fletcher University of Glasgow School of Law
The Question Concerning Law Modern Law Review, Vol. 66, pp. 792-808, September 2003 Oscar Guardiola-Rivera University College London - Faculty of Laws
Tuesday, October 14, 2003
Tradeable Music Certificates
Bender initially states that music is a public good and then makes the following claim:
Bender's analysis is incorrect. Club goods should be differentiated from toll goods. With a club good, the utility derived from the good varies with the number of players in the club. (James M. Buchanan, An Economic Theory of Clubs, 32 Economica 1 (1965)) Thus, a motion picture theater is a club good, with the particular property that consumption of the good is nonrivalrous up to a threshold value (essentially when the theater is "full," after which point the utilities for the group begin to decline). Club goods are excludable but only partially rivalrous. Music is not a club good. First, because music is not partially rivalrous in the sense required by the definition of a club good. The utility that I derive from my copy of an MP3 file does not depend on whether or not others are also listening to the same MP3 file. (This may be qualified, because of social externalities derived from common listening, but this wrinkle is not the basis of Bender's argument.) Rather, music is a toll good. The law can prohibit copying, creating excludability, but consumption is nonrivalrous. To the extent that new technologies make legal prohibitions of copying ineffective or too costly, then music is a pure public good, i.e. nonrivalrous and nonexcludable.
But the heart of Bender's paper is not really affected by these quibbles. The most interesting idea in the paper is that of a tradeable music certificate, which Bender models on tradeable pollution rights. Here is his description of the concerpt:
An implementation strategy for the music certificate is to combine the price of a physical piece that contains the IPRs with the certificate. For example, the price of a CD contains the certificate price. This music certificate can be sold on the copying exchange. Users should receive the fair value for the music certificate on this exchange. Without owning the certificate they loose the right to make copies of their CD. Other individuals that own a CD but do not own a certificate can acquire one at the copying exchange and start to copy their music. In equilibrium, only people with low copy-costs will own certificate and the value of the certificate will reflect the marginal cost to copy.
Volokh on the Pledge For Eugene Volokh's quick and dirty analysis of the pledge of allegiance case, go here.
Casuality in the Federal Courts Not to mentions potions and lotions. Go here. Courtesy of the super-amazing Howard Bashman of Howe Appeeling.
A Dialogue on Contract Theory Here.
Eastman on Tushnet I highly recommend Mark Tushnet's Constitutional Hardball, which is the subject of a recent post by Wayne Eastman.
Another RIAA Mistake Pointer courtesy of Donna Wentworth at Copyfight. The EFF has identified another mistaken defendant in a RIAA filesharing lawsuit. Here is the gist:
Our Best Wishes . . . go out to law professor Jeff Cooper who is taking what looks to be a long hiatus from blogging. My very best wishes to Jeff and my thanks to him for his most excellent blog.
Statutory Construction Zone One of the very nice things about Gary O'Connor's fine blog is the quote posted every time the blog is updated. Here is the latest:
JEREMY BENTHAM, A COMMENT ON THE COMMENTARIES 100-01 (written between 1774 and 1776, published in 1928, and reprinted in 1976)
Welcome to the Blogosphere . . . to Philosophical Thoughts!
Call for Papers: Justice
Peeved About Coase Actually, Will Baude is peeved about simplified uses of Coase's theorem--for a brief explanation of the theorem itself, check out this installment in the Legal Theory Lexicon.
Jacob Levy at George Mason Today Fans of Jacob Levy's thoughtful blogging will be especially interested to learn that he is workshopping today. At George Mason's Workshop in Philosophy, Politics and Economics, Jacob presents Ancient and Modern Constitutionalism Revisited. Here is a taste:
Schaffner at Pittsburgh At the University of Pittsburgh (Philosophy), Kenneth Schaffner (George Washington University) does Genes, Behaviors, and the Brain.
Fennell at Texas At the University of Texas, Chris Fennell does an internal workshop titled Structures and Scales of Reciprocity: Implications from Anthropological Studies and Game Theory Experiments.
Certiorari Granted in the Flag Salute Case Howard Bashman has the scoop here. And a bit more from Eugene Volokh here.
Clark on the Supremacy Clause Bradford Clark (George Washington Law School) has posted The Supremacy Clause as a Constraint on Federal Power on SSRN (also forthcoming George Washington University Law Review, Vol. 71). Here's the abstract:
I'm not suggesting that this conclusion is correct. Quite the contrary. One might then argue that the purpose of the differentiation between laws and treaties was simply to differentiate between the treaties made before the new constitution and the laws made afterwards. (Look at pages 30-31 for Clark's discussion of this argument, made famous by Currie.) I haven't given Clark's article the close study it deserves, but it does seem to purchase textual support for judicial review of statutes by admitting the negative pregnant--surely a troublesome result. Download it while its hot!
Listokin on Discounted Present Value Sentencing Yair Listokin (Yale Law School) has an intriguing proposal in Crime and (with a Lag) Punishment: Equitable Sentencing and the Implications of Discounting. Here is the abstract:
Conference Announcement: Fourteenth Amendment at Temple
New Papers on the Net Here is today's roundup:
Monday, October 13, 2003
Barnett on Lott, Bellesiles, and the Perennial Issue of Peer Review versus Law Review Randy Barnett has a good post on the questions raised about John Lott's More Guns, Less Crime hypothesis, go here. Both Lott and Bellesiles published their questionable work in peer reviewed journals, and Barnett comments on that aspect of the controversy. Read the whole thing, but here is a taste:
Koppelman at Chicago Today at the University of Chicago's Law and Philosophy series, Andrew Koppelman (Northwestern University Law School) presents Pornography for the Whole Family.
Eric Muller Reports on the Law, Loyalty and Treason Conference at North Carolina Start here and scroll up!
Bolton at Columbia Today at Columbia's Center for Law and Economic Studies, Patrick Bolton (Princeton University, Bendheim Center for Finance) presents Executive Compensation and Short-termist Behavior in Speculative Markets. Here is the abstract:
Velleman at Oxford Today at Oxford University's Moral Philosophy Seminar, David Velleman presents A Sense of Self.
Hasen on the Lessons of the Recall Rick Hasen has a Findlaw column entitled Learning from the California Recall Experience; What the Unprecedented Election Tells Us About our Laws Governing Politics. Here is a taste:
Cao at USD At the University of San Diego's Colloquium Series, Lan Cao (William and Mary) presents The Diaspora of Ethnic Economies: Beyond the Pale?.
Fishkin at Stanford Today at Stanford's Center for Internet and Society, James Fishkin presents Creating Deliberative Democracy Online: Deliberative Polling and its Implications.
Ribstein on the Theory of the Corporate Form Larry Ribstein (University of Illinois) has posted Why Corporations? on SSRN. Here is the abstract:
Snowdon Delivers the Presidential Address to the Aristotelian Society in London In London, Paul Snowdon (University College, London) presents the Presidential Address for the Aritotelian Society. His title: Knowing How and Knowing That: A Distinction Reconsidered.
How much money do law professors make? Surf on over to the Leiter Reports for some answers.
Review of The Cambridge Companion to Rawls On Notre Dame Philosophical Reviews, Wilfried Hinsch reviews The Cambridge Companion to Rawls, edited by Samuel Freeman. Here is a taste:
Sunday, October 12, 2003
Legal Theory Lexicon: Holdings
Introduction It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So here we go!
Holding, Dicta, and Stare Decisis It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents! Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision? The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision." This is as good a place as any to mention that "dictum" is the singular (one unecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.
Just a bit more about stare decisis So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for "precedent." Here are some very basic points:
Two Theories of Holdings In fact, there are two theories of what constitutes the holding of a case. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:
Conclusion The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least two holdings when you read a case. First, look for the true ratio decidendi, the narrowest reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. And then you might compare the two holdings that emerge from these two inquries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"
If you are frequently reader of Legal Theory Blog, you will know that I am a proponent of the formalist view of stare decisis. If you would like to read more about why I think, this surf to my three part series: The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument, Part II: Stare Decisis and the Ratchet, and Part III: Precedent and Principle.
For past and future installments in the Legal Theory Lexicon series, you can surf here.
Legal Theory Calendar
At Stanford's Center for Internet and Society, James Fishkin presents Creating Deliberative Democracy Online: Deliberative Polling and its Implications.
In London, Paul Snowdon (University College, London) presents the Presidential Address for the Aritotelian Society. His title: Knowing How and Knowing That: A Distinction Reconsidered.
Update: At the University of Chicago's Law and Philosophy series, Andrew Koppelman (Northwestern University Law School) presents Pornography for the Whole Family.
Update: At Columbia's Center for Law and Economic Studies, Patrick Bolton (Princeton University, Bendheim Center for Finance) presents Executive Compensation and Short-termist Behavior in Speculative Markets.
At Oxford's Moral Philosophy Seminar, David Velleman (Michigan) presents A Sense of Self.
At the University of Texas, Chris Fennell does an internal workshop titled Structures and Scales of Reciprocity: Implications from Anthropological Studies and Game Theory Experiments.
At the University of Pittsburgh, Kenneth Schaffner (George Washington University) does Genes, Behaviors, and the Brain.
Update: At Northwestern, David Schizer (Columbia University Law School) presents Scaling Up and the Taxation of Risky Investments: Derivatives and the Search for Practical Applications.
At Yale Philosophy, Janet Broughton presents Hume's Naturalism.
At NYU's Colloquium in Legal, Political and Social Philosophy, Edward Baker (University of Pennsylvania) presents an excerpt from Constitutional and Philosophical Foundations of Libertarian Socialism At Boston University, Keith Hylton presents Products Liability and Preemption: A Positive Theory.
At the University of Michigan's Law and Economics series, Doug Lichtman (Chicago) presents Rethinking Prosecution History Estoppel.
Update: At Northwestern, Robert MacCoun (University of California, Berkeley, School of Law) presents The Varieties of Marijuana Prohibition: Do Laws Influence Drug Use?.
At George Mason, Kimberly Moore (GMU School of Law) presents David & Goliath in the U.S. Patent System.
Today and tomorrow at Florida State, Daniel Tarlock (Chicago-Kent College of Law) presents Hyper-rationality in the Age of Chaos: The Case of the U.S. Army Corps of Engineers.
In Vancouver, British Columbia, thePacific Northwest Political Science Association Annual Meeting today through the 18th.
Today through the 19th, the Association for Feminist Ethics and Social Theory meets in Clearwater Beach, Florida.
At UCLA, Ernest Young (University of Texas School of Law) presents The Ordinary Diet of the Law': Federal Preemption and State Autonomy.
At Cleveland-Marshall College of Law, a conference entitled Sovereignty and the Right to Death with Lauren Berlant, Robert Bernasconi, Drucilla Cornell, Simon Critchley, Costas Douzinas, Peter Fitzpatrick, Peter Goodrich, Anselm Haverkamp, Tayyab Mahmud, Achille Mbembe, J. Hillis Miller, Andrew Norris, Austin Sarat, Denise Ferreira da Silva, and Johan van der Walt, among others. At Boston University's philosophy series P.J. Ivanhoe (University of Michigan) presents The Values of Spontaneity
In London, Ontario, Canada, the International Labour Law Conference starts today.
At Vanderbilt, a conference entitled Who Makes Corporate Law? There will be papers presented by Professors Mark Roe, Marcel Kahan, Lucian Bebchuk, Guhan Subramanian, Vice-Chancellor Leo Strine, Jonathan Macey, and Robert Thompson and comments from Professors Edward Rock, Donald Langevoort, Craig Pirrong, Ehud Kamar, Edward Kitch, Steve Bainbridge, Lynn Stout, and Bill Bratton.
Saturday, October 11, 2003
Download of the Week There were many, very fine, papers this week, including a terrific paper by Tushnet, Dworkin's comments on the terrorism, and rights, a very good paper by Rick Hasen, and two (here and here) fine essays by Alexander and Prakash. But my pick for Download of the Week is Contracts Without Consent: Exploring a New Basis For Constractual Liability by Omri Ben-Shahar (University of Michigan Law)--a marvelously original and compact essay in contract theory. Here is a taste:
Legal Theory Bookworm This week, the Legal Theory Bookworm recommends A Theory of Justice by John Rawls. Many readers of Legal Theory Blog, know all about TJ, which is the insiders acronym for A Theor of Justice, and in the 1970s, at many law schools, the traditional jurisprudence class (which up to then had covered the What is law debate?) was chucked and a course that covered TJ and Robert Nozick's Anarchy, State, and Utopia was substituted. A Theory of Justice is the most significant work in political philosophy of the twentieth century, and it has had a profound influence that extends far beyond academic philosophy, into law, politics, economics, and outside of the Anglophone world.
At the core of TJ is an argument for two principles of justice. The liberty principle (which requires that each citizen be given the basic liberties, e.g. freedom of conscience and speech, due process of law, the right to vote, etc.) and the difference principle, which requires the differences in wealth, income, and social position be distributed so as to benefit the least-advantaged group in society.
Rawls's argument for the two principles defies easy summary, but it is possible to state a few of the important ideas:
If you have not read A Theory of Justice, you are in for a treat. You may disagree with Rawls at every turn or you may be convinced, but this is the book that revived normative political and moral philosophy. It has been hugely influential, in small part because of good timing and in large part because it is so damn good.
Friday, October 10, 2003
Conference Announcement: American Society for Political and Legal Philosophy
Fisch on the Legal Compliance Committee At the University of San Diego's colloquium series, Jill Fisch (Fordham) presents The Qualified Legal Compliance Committee: Using the Attorney Conduct Rules to Restructure the Board of Directors.
Gaus at Tulane Jerry Gaus presents The Place of Autonomy Within Liberalism at Tulane's Center for Ethics and Public Affairs.
Sunder on the New Enlightenment At UCLA's Williams Project series, Madhavi Sunder (UC Davis School of Law, visiting Cornell) presents The New Enlightenment: Women, Gays, and the Quest for WILLIAMS PROJECT SERIES Freedom Within Religion and Culture, Not Just Without Them.
Schlegel at Buffalo Jack Schlegel workshops The Place of the Disciplines in the Contemporary University.
Chapel Hill Colloquium At the University of North Carolina Department of Philosophy, the Chapel Hill Colloquium, Fall 2003, has lead papers by Keith DeRose, Barbara Herman, George Bealer, Ted Cohen, and Michael Friedman.
Environmental Law Conference at Syracuse At Syracuse Univesity College of Law is hosting The Economic Dynamics of Environmental Law & Static Efficiency Conference on October 10 & 11.
Conference on Brown v. Board
Lichtman on Prosecution History Estoppel Douglas Lichtman (University of Chicago Law School) has posted Rethinking Prosecution History Estoppel on SSRN. Here is the abstract:
Vairo on Mass Tort Bankruptcies Georgene Vairo has posted Mass Torts Bankruptcies: The Who, The Why, And The How on SSRN. Here is the abstract:
Hsu on Fairness versus Efficiency in Environmental Law Shi-Ling Hsu (The George Washington University Law School) posts Fairness Versus Efficiency in Environmental Law on SSRN. Here is the abstract:
Yu on Piracy Peter Yu (Michigan State University-DCL College of Law) has posted Four Common Misconceptions About Copyright Piracy (forthcoming Loyola Los Angeles International and Comparative Law Review, Vol. 26, 2003) on SSRN. Here is the abstract:
Copyright Reform Department: Derek Slater on Terms for the Right to Prepared Derivative Works The bundle of rights that make up the "copyright" in U.S. law includes the right to prepare derivative works. Derek Slater proposes that such derivative rights have shorter terms than the right to copy the work itself. Interesting idea.
Two by Witte John Witte (Emory University - School of Law) has posted two new papers on SSRN:
Fon and Parisi on Norm Formation Vincy Fon and Francesco Parisi (George Washington University - Department of Economics and George Mason University School of Law) have posted Role-Reversibility, Stochastic Ignorance, and the Formation of Norms on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Review of Goldberg Berel Dov Lerner reviews Fads and Fallacies in the Social Sciences by Steven Goldberg. Here is a taste:
Conference at North Carolina: Law, Loyalty, and Treason
Thursday, October 09, 2003
Playing Hardball The incredibly smart and learned Mark Tushnet (Georgetown) has the intriguingly titled Constitutional Hardball up on SSRN (and forthcoming in the John Marshall Law Review. Here is the abstract:
At the same time, some aspects of the Democrats’ and the Republicans’ behavior were unusual. The Democratic filibusters were, if not unique,11 quite unusual. We might compare the nomination filibuster to recess appointments to the federal courts. The Constitution clearly authorizes such appointments,12 and presidential use of the power was not unusual.13 But, presidents have come to refrain from using their undoubtedly constitutional power to make recess appointments, in part out of concern about possible intrusions on judicial independence that arise from the possibility that a recess nominee will not receive a permanent position unless he or she curries favor with the president.14 This restraint on the use of acknowledged power might even amount to a weak pre-constitutional convention against recess appointments to the courts. Similarly, one might say, that the Senate had adopted a preconstitutional convention against using the filibuster on judicial nominations since the Fortas nomination. The Democrats’ filibuster is then a repudiation of a settled pre-constitutional understanding.
The Republican response is similar, though on a lower level. Some Republicans suggested that were the filibusters to persist they would support litigation aimed at establishing the unconstitutionality of the practice.15 What was unusual about this threat is that Senators typically have been quite jealous about refraining from submitting intrahouse disputes to judicial supervision. The Senate leadership has often filed papers asserting that individual Senators lack standing to challenge Senate procedures, for example. The preferred course – perhaps, again, amounting to a pre-constitutional convention – is for the Senate to resolve these internal disputes internally.16
Rorty on Davidson Via Crooked Timber, The Boston Globe has an entertaining piece by Richard Rorty that discusses Donald Davidson. Here is a taste:
Contracts Scholars Urgently Needed Surf here to help!
Sunstein on Lawrence v. Texas Cass Sunstein (University of Chicago Law School) has posted What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage on SSRN. Here is the abstract:
Picker on Ad Free TV Randal Picker (University of Chicago Law School) has posted The Digital Video Recorder: Unbundling Advertising and Content. Here is the abstract:
New Papers on the Net Here is today’s roundup:
Establishing sound law and policy with regard to invasive species would be hard enough if the puzzles were merely biological, psychological, economic and political. However, the ultimate questions about the law and policy with regard to non-indigenous species, and invasive species, reflect deep value preferences, values that reflect more general philosophical tenets that may border on religious beliefs. This morass of human and social dimensions swirling around the issue of invasive species makes the lack of coherent and comprehensive laws easier to understand, even in the face of longstanding recognition that some non-indigenous species could be very harmful indeed.
After reviewing the disjunction between key international instruments and the laws of nation-states, with a focus on the possible meanings of a recommended "precautionary principle" in some of these instuments, the essay suggests three steps should come first: an assessment of the status of alien species in the country, a focus on prevention of new introductions, and the integration of a holistic approach, aware of the social, psychological and commercial aspects of the invasive species problem.
The paper argues that while federal common law initially performed a zoning function by encouraging polluters to relocate to less populated areas, injunctions issued by the Court ultimately spawned the development of new pollution control technology. Through a series of injunctions designed to vindicate the right of sovereign states to prevent significant harm from transboundary pollution, the Court restricted emissions from Tennessee copper smelters, required Chicago to build its first sewage treatment facilities, and mandated that New York City construct an incinerator to dispose of garbage formerly dumped into waters washing onto New Jersey shores. By holding source states liable for damage caused by transboundary pollution, the Court contributed to the development of new technology for reducing pollution.
Despite its unique role in resolving disputes between states, the Supreme Court long doubted its competence to make complex judgments concerning appropriate levels of pollution control. Thus, it sought to encourage states to resolve transboundary pollution disputes through negotiation and cooperation. While these efforts largely failed, the Court ultimately removed itself from the role of arbiter of transboundary pollution disputes by holding that the Clean Water Act's comprehensive federal regulatory program to control water pollution preempted the federal common law of interstate nuisance.
The article's main points are:
1. Recent revisionist scholars who argue that Justice Miller intended his opinion on privileges and immunities in the Slaughter-House Cases to support incorporation of the bill of rights are wrong. The smoking gun on this point is a letter written by Chief Justice Waite that thanks Miller for suggesting the Slaughter-House Cases as a citation in the Cruikshank opinion and for praising his opinion in that case.
2. Although the privileges or immunities clause of section one of the Fourteenth Amendment refers to preexisting rights and creates no new ones, it is not empty. As a point of reference for congressional power under section five, the clause makes a previously implicit congressional power express.
3. The congressional power to enforce section five does not rise above the scope of the privileges in section one. If the Court continues to find Congress has no power under Article I to create private rights of action against the states, the recognition that Article I statutes are privileges of citizenship will not bootstrap the power into overriding state sovereignty.
4. None of the alternative substantive readings urged for the privileges or immunities clause is satisfactory as a historical matter, in part because the framers had a variety of internally inconsistent views. They did intend the clause to have substance, but other clauses are better vehicles for providing that substance.
5. A shift from substantive due process to the privileges or immunities clause would be a mistake. The linguistic and precedential problems of existing doctrine are inherent in unenumerated rights and are not improved by switching clauses. Instead, switching clauses creates unwise risks of shrinking rights recognized by the present court or expanding them to areas with less support in history and policy.
6. A fundamental rights interpretation of the clause would shift power in traditionally local areas of contract, property and criminal law from the states to Congress. That would obliterate federalism, contrary to the intent of the drafters of the clause. Whether federalism should be obliterated is the crucial policy question. The article contends other clauses are adequate sources of power for Congress to deal with national problems, and federalism should remain an important value.
Madison on Fair Use Michael Madison (University of Pittsburgh School of Law) has posted A Pattern-Oriented Approach to Fair Use (forthcoming in the William & Mary Law Review) on SSRN. Here is the abstract:
An Absolute Must A Non-Socratic Dialogue on Social Welfare Functions. Don't miss this! Brad DeLong strikes again.
Keefer at USD/UCSD At the University of San Diego/University of California at San Diego Law, Economics and Politics Workshop series, Philip Keefer is presenting on the UCSD campus. Here is the abstract:
Ronald Dworkin on Rights and Terror at NYU At NYU's Colloquium in Legal, Political and Social Philosophy, Ronald Dworkin presents "Rights and Terror" & "What Are Human Rights?"Here is a taste:
Novak at UCLA At UCLA's Legal History Workshop, Bill Novak (University of Chicago) presents The Legal Transformation of Citizenship in Nineteenth-Century America.
Ben-Shahar at Yale At Yale's Legal Theory series, Omri Ben-Shahar (University of Michigan Law) presents Contracts Without Consent: Exploring a New Basis For Constractual Liability. Here is an abstract:
Barr at Michigan At the University of Michigan's Law and Economics series Michael Barr (Univeristy of Michigan) presents Banking the Poor.
Darwall at Yale Philosophy Stephen Darwall presents The Dignity of Persons and the Second-Person Standpoint at Yale's philosophy department.
Hutto on Pragmatism Dan Hutto (Hertfordshire) presents James and the Truth of Pragmatism: Resisting the Weltanschauung at the University of Hertfordshire Centre for Normativity and Narrative in London.
Chorvat at George Mason At George Mason, Terry Chorvat does an internal workshop entitled Taxes as Insurance.
Taylor on Community and Democracy From the Responsive Community, Charles Taylor has an essay entitled No Community, No Democracy (Part I). Here is a taste:
Mattozzi on Uncertainty and Support for Redistribution Andrea Mattozzi (University of Pennsylvania) has uploaded Policy Uncertainty, Electoral Securities and Redistribution. Here is the abstract:
Transitions The Journal of Contemporary Legal Issues has a new issue (13:1, 2003) with a symposium entitled Legal Transitions: Is There an Ideal Way to Deal with the Non-Ideal World of Legal Change?. Contributors include Larry Alexander, Matthew D. Adler, Abraham Bell, Richard A. Epstein, Jill E. Fisch, Barbara H. Fried, Louis Kaplow, Kyle D. Logue, Frederick Schauer, Daniel Shaviro, and Christopher T. Wonnell. Very interesting stuff.
Wednesday, October 08, 2003
Addition to the Blog Roll I've added The Right Coast, a group blog by my University of San Diego law school colleagues Gail Heriot, Saikrishna Prakash, Michael Rappaport, Maimon Schwarzschild, Thomas Smith, and Christopher Wonnell, to the sidebar.
Catching Up Department: Hermeneutics, free speech & democracy I somehow missed two marvelous posts by Gary Sauer-Thompson at Philosophy.com. They are titled Hermeneutics, free speech & democracy#1 and (you guessed it) Hemeneutics, free speech and democracy #2. Here is a tiny taste:
Brocas & Carrillo on Influence Isabelle Brocas & Juan D. Carrillo (University of Southern California and CEPR) have uploaded a paper entitled A Theory of Influence. Here is a taste:
Supreme Court Preview Here on Slate from Tom Goldstein, of Scotus Blog.
The Corporate Canon Stephen Bainbridge has a very neat post entitled The Corporate Canon. And check out his review of Ronald Coase's The Firm, The Market, and The Law.
Politicization of the Judiciary Department Over at The Hill, Alexander Bolton has story titled K Street enters fray over bench: At urging of GOP, business sets aside reluctance to fight. Here is a taste:
Alexander and Prakash on the Nondelegation Doctrine Lawrence Alexander and Saikrishna Prakash (University of San Diego School of Law and University of San Diego School of Law) have posted Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated on SSRN. This will be coming out in the University of Chicago Law Review. Excellent! Here is an abstract:
de Botton in London on the Consolations of Philosophy Alain de Botton presents Can, and Should, Philosophy Console Us? at Heythrop College, London.
Mann on Regulating Paypal Ronald Mann (University of Texas at Austin - School of Law) has posted Regulating Internet Payment Intermediaries (forthcoming Texas Law Review, 2004) to SSRN. Here is the abstract:
Two from Shaviro Two new papers from David Shaviro (NYU) on SSRN:
Bernstein on the Pros and Cons of Marriage Anita Bernstein (Emory University School of Law) has posted For and Against Marriage: A Revision (forthcoming Michigan Law Review, Vol. 102, No. 2, November 2003) on SSRN. Here is the abstract:
Parisi & Mattiacci on Communal Liability in Ancient Law Francesco Parisi and Giuseppe Mattiacci (George Mason University School of Law and Utrecht School of Economics) have posted The Rise and Fall of Communal Liability in Ancient Law on SSRN. Here is the abstract:
Catholic Social Thought and the Corporation Surf here for Stephen Bainbridge's thoughts. Here is a taste:
Tuesday, October 07, 2003
The Annals of Oral Argument: The Medical Cannabis Cases, Part II
The Ninth Circuit’s San Francisco headquarters are stodgy and unassuming from the outside, but the interior spaces, especially the courtrooms and judicial chambers, are spectacular—one of the most ornate public buildings in the United States. Courtroom Three is filled with elaborate marble panels, frescoes, stained glass skylights, and elaborate carvings. The room leaves no doubt—we are in a place where power claims the trappings of majesty.
The medical cannabis cases arise because of a conflict between state and federal law. The voters of the state of California adopted an initiative that legalizes the medical use of marijuana, but under federal law, Marijuana is a controlled substance, not authorized for medical use. The Controlled Substances Act essentially prohibits growing, selling, distributing, possessing, and using marijuana, without regard to whether the marijuana crossed state lines, was commercial or noncommercial, or was employed for medical or nonmedical purposes.
Raich v. Ashcroft involves “home grown” marijuana for personal medical use. One of the two cases involves a plaintiff who grew her own; the other involves a plaintiff who is too ill to grow her own and receives the cannabis from a friend who grows it for her without payment or compensation. Thus, one of the issues in Raich is whether Congress has the power to prohibit the wholly intrastate, noncommercial (and noneconomic) production and consumption of cannabis for medical purposes. The plaintiffs also argue that the federal statute runs afoul of state sovereignty (the 10th Amendment), implied fundamental rights (the Due Process clause & the Ninth Amendment), and the general constitutional liberty recently relied upon by the Supreme Court in Lawrence v. Texas--the gay sex case from last term.
The Argument Begins There are two cases on the docket before Raich v. Ashcroft—the first of which involves an evidentiary issue that had a tangential connection with medical marijuana. The second case involved a doctor whose right to prescribe controlled substances was suspended by the Drug Enforcement Administration—again, on appeal medical marijuana was only tangentially connected with a waiver of hearing issue. Finally, Harry Pregerson, the most senior Ninth Circuit member of the panel, calls Raich. Randy Barnett (known to blogosphere as a member of the Volokh Conspiracy, and a prominent constitutional law scholar) is now at the podium. Barnett begins, a statement of the question, and then says:
And this question take us to the heart of an extraordinary constitutional issue: what is the limit of the power of the national government in our federal system? One of the marvels of the Raich case is that it exposes an extraordinary fact: more than two hundred years after the Constitution was adopted, the federal courts are still puzzling over the fundamental nature of the limits of federal power. The back story of Raich goes back to the Constitutional Convention in Philadelphia and includes Justice John Marshall’s decision in McCulloch v. Maryland, but we can fast forward . . .
Interlude: The Constitutional Context
From the New Deal to the Rehnquist Court The Commerce Clause has a long and complex history, but a crucial turning point came in 1937, when the Supreme Court began to take an expansive view of Congress’s commerce power. Fast forward just a few years to Wickard v. Filburn, which held that Congress could regulate “home grown” wheat that a farmer used to feed livestock which then entered the “stream of commerce.” The theory of Wickard was that the cumulative effect on interstate commerce of all farmers who used “home grown” wheat to feed livestock was significant—hence the phrase “cumulative effects test.” By the 1960s, many academics believed that the Supreme Court had adopted the view that the Commerce Clause granted Congress plenary legislative power--essentially nullifying the original constitutional scheme of a federal government that had only limited and enumerated legislative powers. When I took Constitutional Law from Laurence Tribe at Harvard in the 1980s, this was the conventional wisdom. (Indeed, law students complained about having to study all of the ancient history (including lots of cases), when the black letter law was that Congress’s commerce power was essentially unlimited. But the Supreme Court itself never actually adopted the plenary power interpretation of the commerce clause, and until the 1980s, Congress itself was careful to legislate within the broad (but not unlimited) sphere of authority that the Supreme Court had approved in cases like Wickard.
But in the mid-1990s, the Rehnquist Court started a constitutional “revolution” (or “restoration”) in two cases, Lopez and Morrison. In the first case, Lopez, the Court struck down the Gun Free School Zones Act, which prohibited the possession of a firearm within a certain distance from a school. Lopez was initially regarded as a mere blip—partly because Congress had gotten careless and had not made any findings that the guns near schools somehow had a significant cumulative effect on interstate commerce. But that interpretation of Lopez was laid to rest in Morrison, which involved a challenge to the Violence Against Women Act (VAWA). When Congress passed VAWA, it knew about Lopez, so it made explicit findings that intrastate violence against women had a significant effect on Interstate commerce. But the Supreme Court nonetheless struck VAWA down. The crucial bit of reasoning in Morrison was that the Wickard v. Filburn cumulative effects test simply does not apply when the activity that Congress regulates is noneconomic in nature. Fattening livestock for sale is economic activity, but possessing a gun near a school or assaulting a woman are not economic activities.
The Issue in Raich So it is easy to see the government’s difficulty in Raich. Using homegrown marijuana that is not sold or bartered or transported across state lines is noneconomic, intrastate activity. Indeed, if Congress had passed a statute that specifically targeted the activities of the Raich plaintiffs, it is seems almost certain that it would be struck down. But the Controlled Substance Act is not limited to intrastate, noncommercial marijuana; it extends to all controlled substances, commercial and noncommercial, interstate and intrastate. So the government’s argument is that by legislating broadly, Congress can reach the whole enchilada, whereas the plaintiffs argue that Congress cannot ignore the distinction between intrastate and interstate, commercial and noncommercial activity—because those distinctions are built into the Constitution itself.
The Government’s Turn The United States is represented by Mark Qinlivan, who begins by emphasizing the Ninth Circuit precedents, before and after Lopez. Judge Pregerson asks whether any of those cases were on all fours with Raich. Qinlivan concedes that there is not, but argues that there are analogous cases, for example, a case involving marijuana plants that are “rooted in the soil.” But, asks Pregerson, did those cases involve medical use of marijuana. Qinlivan then moves to an argument he made in the OCBC, that the lack of a medical necessity defense somehow settles the constitutional question as to what the class is in cases like Raich. Judge Paez then asks about the McCoy case—in which the Ninth Circuit used an “as applied” test in a case involving “home grown” pornography. Qinlivan then argues that McCoy should be interpreted narrowly. Judge Pregerson goes back to the fundamental question: isn’t this a case that does not involve “economic activity.” Qinlivan then makes a huge mistake—arguing that in the OCBC there was economic activity, emphasizing the very distinction that Pregerson has pressed upon him. Qinlivan recovers and argues that the class involved in Raich is trivial. This is the heart of the government’s position—that noncommercial, intrastate medical marijuana cannot be viewed as a distinct class of activity. Why? Because if the government were to concede that this is the relevant class of activity, then the invalidity of the statute would almost surely follow!
Pregerson goes back to the “rooted in the ground” case and points out that that case involved marijuana grown for sale. Qinlivan concedes this point, but once again goes back to his strong point—the prior cases that upheld the Controlled Substance Act against commerce clause challenges. Qinlivan then discussed the state sovereignty theory and the individual rights theories. Judge Paez asks whether the Ninth Circuit had addressed the fundamental rights issues in its prior case--OCBC, which Barnett and Qinlivan argued last month. There is some back and forth on this issue. Qinlivan is much more effective today than he was in OCBC—sticking to his strongest argument that the prior decisions (mostly pre-Morrison and pre-Lopez) which held that the Controlled Substances Act was constitutional. Judge Pregerson asks about a new drug derived from marijuana that has been developed in Germany, and Qinlivan jumps on this to argue that such new drugs could be approved by the FDA.
Rebuttal Barnett now takes the podium again. He quickly points to the California Medical Association’s brief that discuss the medical issues in the case. He then turns to the heart of the Qinlivan’s argument—precedent. Barnett points out that the government’s cases either involve economic activity or were decided before Morrison. Paez asks about the Ninth Circuit’s decision in McCoy, “Isn’t this a McCoy case?” Barnett is happy to answer, “Yes.” This is a significant point in the argument. If the panel does view Raich as closely analogous to McCoy, then the plaintiffs should prevail. Barnett returns to his opening theme and suggests that the virtue of McCoy is that it took the Morrison and Lopez decisions seriously. He handles a few miscellaneous points, and then the argument is . . .
Finis! The next case is called, and the argument in Raich is over. The conventional wisdom is that oral argument rarely affects the outcome of an appellate case. Appeals are won or lost on the merits (the law, the facts, and procedural history) and the briefs. By the time the case is argued, the judge has read the briefs and probably a “bench memorandum” from a law clerk—and already has a clear understanding of the issues. But oral argument sometimes makes a difference—especially when the advocate is sensitive to the issues that are bothering the appellate Court. In this case, the predispositions of the panel are somewhat murky. On one hand, we might expect that Judges Pregerson and Paez would be sympathetic to the plaintiffs cause. On the other hand, liberal judges might be disposed to limit the Supreme Court’s Morrison and Lopez decisions. Based on my reading of the oral argument—a perilous business at best—the panel seemed generally sympathetic to plaintiffs and skeptical of the government’s position. Both Barnett and Qinlivan argued strongly. It will certainly be an interesting opinion, no mater how the panel comes down.
Kenneth Anderson at Texas At the University of Texas Faculty Colloquium series, Kenneth Anderson (American University) presents International NGOs and Legitimacy. I wish I could be there!
Gill on the Economcis of Duress At the University of Chicago's Olin series, Oren Bar Gill (The Society of Fellows, Harvard University) presents Credible Coercion: Economic Analysis of the Duress Doctrine in Contract Law.
Mossoff Rescues Locke from Obscurity Adam Mossoff (Michigan State University-DCL College of Law) has posted Locke's Labor Lost (forthcoming University of Chicago Law School Roundtable, Vol. 9, p. 155, 2002) on SSRN. Here is an abstract:
Law, Ethics, and Affirmative Action at the University of Cincinnati Today at the University of Cincinnati College of Law, Law, Ethics, and Affirmative Action in America Here is the program:
Galston on Civic Renewal Miriam Galston (The George Washington University Law School) has posted Civic Renewal and the Regulation of Non-profits on SSRN. Here is the abstract:
Staudt on Standing Nancy Staudt (Washington University Law School) has posted Modeling Standing (forthcoming New York University Law Review, 2004) to SSRN. Here is the abstract:
Redlawsk on Hot and Cold Cognitive Mechanisms David Redlawsk (University of Iowa - Department of Political Science) has posted Hot Cognition or Cool Consideration? Testing the Effects of Motivated Reasoning on Political Decision Making (forthcoming Journal of Politics, Vol. 64, pp. 1021-1044, 2002) on SSRN. Here is the abstract:
New Papers on the Net Here is today's roundup:
Monday, October 06, 2003
Kermit Hall on the Supreme Court's Future Kermit Hall (History, Utah State) has a nice op/ed in the Salt Lake Tribune entitled Supreme Court ideology hard to predict. Here is a taste:
Absent death or disability, we may not see a change on the court until June 2005. By then, President Bush, if he loses, will end up like Jimmy Carter -- the only full-term president never to appoint a justice. Supreme Court justices are loath to retire during an election season, considering it irresponsible to entangle the confirmation process in a presidential campaign. The last time a president sought to push through an election-year candidate was 1968, but Lyndon Johnson, who was not running for re-election, withdrew under pressure the nomination of his longtime aide Abe Fortas.
Leiter on the Immortals of Legal Theory My post on The Immortals has generated a characteristically thoughtful and trenchant response from Brian Leiter. My list of candidates for immortality included O.W. Holmes, Karl Llewellyn, Hans Kelsen, H.L.A. Hart, N. Luhmann, Ronald Coase, Richard Posner, Joseph Raz, Ronald Dworkin. Leiter writes:
Loren on the Web of Music Copyrights Lydia Pallas Loren (Northwestern School of Law of Lewis and Clark College) has posted Untangling the Web of Music Copyrights (forthcoming Case Western Reserve Law Review, Vol. 53, Spring 2003) on SSRN. Here is the abstract:
Kontorovich Paper Now Available On September 29, I blogged re Eugene Kontorovich's (George Mason University - School of Law) workshop at the University of Chicago. The paper, Liability Rules for Constitutional Rights: The Case of Mass Detentions, is now available from SSRN.
Weekend Wrap Up Posted on Saturday you will find the Download of the Week and a recommendation from the Legal Theory Bookworm. On Sunday, the Legal Theory Calendar previews events for tis week and the Legal Theory Lexicon discusses the reasonable person--with a followup by Tim Sandefur here.
Daily Whirl Legal Theory Blog has been added to the Daily Whirl (a fine aggregation service for blawgs and other legal information sites).
Hasen on Congressional Power & Section 5 of the Voting Rights Act Rick Hasen (Loyola Marymount, Loyola Law School) has posted Congressional Power to Reenact Section 5 of the Voting Rights Act: The Evidentiary Quandary on SSRN. Here is the abstract:
Bohnet & Cooter on the Expressive Theory of Law Iris Bohnet and Robert Cooter (Harvard University - John F. Kennedy School of Government and University of California at Berkeley School of Law) have posted Expressive Law: Framing or Equilibrium Selection on SSRN. Here is the abstract:
Zacharias on Academic Values in Practice & Practical Values in Academia Fred Zacharias (University of San Diego) has posted Why the Bar Needs Academics – And Vice Versa (forthcoming in the San Diego Law Review, Vol. 40, p. 701, 2003). Here is the abstract:
Norman Geras on Amnesty Normblog has a post entitled The rights and wrongs of amnesty, Part 1 of a series. Here is a taste:
Alexander and Prakash on Intention and Text in Interpretation Lawrence Alexander and Saikrishna Prakash (University of San Diego School of Law and University of San Diego School of Law) have uploaded Is That English You're Speaking? Some Arguments for the Primacy of Intent in Interpretation (forthcoming San Diego Law Review, 2004) to SSRN. I've read this in draft and recommend it highly. Here is the abstract:
Zinnecker on Negotiable Instruments at Florida State At Florida State, Timothy Zinnecker (University of South Texas, visiting at FSU) presents Extending Enforcement Rights to Assignees of Lost, Destroyed, or Stolen Negotiable Instruments Under UCC Article 3: A Proposal For Reform.
Sunday, October 05, 2003
Legal Theory Lexicon: The Reasonable Person
Introduction Good morning from Newton, Massachusetts. Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational) Ken Simons of the Boston University law faculty yesterday, and Ken and I kicked around the ideas that follow.
The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.
A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law.
The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.
When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end.
When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent.
So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due.
Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones.
Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.
Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)
Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis.
Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons.
Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.
And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?
Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.
Legal Theory Calendar
At the University of Texas Faculty Colloquium series, Kenneth Anderson (American University) presents International NGOs and Legitimacy.
At the University of Chicago's Olin series, Oren Bar Gill (The Society of Fellows, Harvard University) presents Credible Coercion: Economic Analysis of the Duress Doctrine in Contract Law.
At Florida State, Timothy Zinnecker (University of South Texas, visiting at FSU) presents Extending Enforcement Rights to Assignees of Lost, Destroyed, or Stolen Negotiable Instruments Under UCC Article 3: A Proposal For Reform.
At NYU's Colloquium in Legal, Political and Social Philosophy presents "Rights and Terror" & "What Are Human Rights?" At Yale's Legal Theory series, Omri Ben-Shahar (University of Michigan Law) presents Contracts Without Consent: Exploring a New Basis For Constractual Liability.
At the University of Michigan's Law and Economics series Michael Barr (Univeristy of Michigan) presents Banking the Poor.
Stephen Darwall presents The Dignity of Persons and the Second-Person Standpoint at Yale's philosophy department.
At UCLA's Legal History Workshop, Bill Novak (University of Chicago) presents The Legal Transformation of Citizenship in Nineteenth-Century America.
At George Mason, Terry Chorvat does an internal workshop entitled Taxes as Insurance.
Dan Hutto (Hertfordshire) presents James and the Truth of Pragmatism: Resisting the Weltanschauung at the University of Hertfordshire Centre for Normativity and Narrative in London.
At UCLA's Williams Project series, Madhavi Sunder (UC Davis School of Law, visiting Cornell) presents The New Enlightenment: Women, Gays, and the Quest for WILLIAMS PROJECT SERIES Freedom Within Religion and Culture, Not Just Without Them.
Jack Schlegel, UB The Place of the Disciplines in the Contemporary University.
At the University of North Carolina Department of Philosophy, the Chapel Hill Colloquium, Fall 2003, has lead papers by Keith DeRose, Barbara Herman, George Bealer, Ted Cohen, and Michael Friedman.
Jerry Gaus presents The Place of Autonomy Within Liberalism at Tulane's Center for Ethics and Public Affairs.
At Syracuse Univesity College of Law is hosting The Economic Dynamics of Environmental Law & Static Efficiency Conference on October 10 & 11.
Saturday, October 04, 2003
Download of the Week This week the download of the week is W. Bradley Wendel (Washington and Lee Law School)'s article entitled Civil Obedience (forthcoming Columbia Law Review) on SSRN. Wendel's paper draws on a sophisticated view of legitimacy and authority to argue that lawyers have a second-order moral reason to respect the law, even when it conflicts with their own first order moral judgments. Here is a taste from near the end of the essay:
Legal Theory Bookworm This week's selection is another classic work of legal theory--Lon Fuller's, The Morality of Law. Almost every law student learns about Lon Fuller's most famous article, The Reliance Interest in Contract Damages, 46 Yale LJ 52 (1936)--which introduced some of the standard ideas in the first-year course on contracts. Fuller, who taught at Harvard Law School, was also famous for the Hart-Fuller debate on the relationship between law and morality. This famous exchange was kicked off by H.L.A. Hart's Holmes Lecture, delivered at Harvard Law School in April of 1957 (Hart's Holmes lecture was published as Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593 (1958) Fuller replied in his Positivism and Fidelity to Law - A reply to Prof. Hart, 71 Harvard Law Review 630 (1958). The debate continued with H.L.A. Hart's magisterial book, The Concept of Law, which was recommended in the first installment of the Legal Theory Bookworm. And that brings us to Lon Fuller's book, The Morality of Law. Hart replied to this in Book Review of The Morality of Law, 78 Harvard Law Review 1281 (1965) and Fuller responded in the the Second (Revised) Edition of The Morality of Law, published in 1969.
Fuller's reputation in the legal theory community has waxed and waned. He is clearly recognized as an important figure in twentieth-century legal thought, but at the same time, his ability to construct a philosophically rigorous argument is frequently derided. My own view is that Fuller's work is quite valuable as a source of interesting and important ideas, and that many of Fuller's positions can be reconstructed and then defended in a variety of interesting ways. Rigorous arguments for uninteresting propositions are, in the end, less valuable than sparkling ideas that supported by flawed argumentation.
Here is a passage from the Morality of Law that will give you a flavor of Fuller's style and substance:
Friday, October 03, 2003
Pruss on Doulbe Effect Courtesy of Online Papers in Philosophy, Alexander Pruss has uploaded Love and Double Effect. Here is a taste:
Bainbridge on Law School Hiring Stephen Bainbridge has a nice post on the role of ideology in law school hiring. For those readers of Legal Theory Blog who are contemplating an academic career, Bainbridge's post is especially interesting for its accurate and insightful description of the law-school hiring process.
Call for Papers: Wickedness
Smith on Thomas More Steven Smith (University of San Diego - School of Law) has posted Interrogating Thomas More: The Conundrums of Conscience on SSRN. Here is the abstract:
Farber and McDonnell Daniel Farber and Brett McDonnell (University of Minnesota Law School and University of Minnesota Law School) have posted Why (and How) Fairness Matters at the IP/Antitrust Interface (forthcoming Minnesota Law Review, Vol. 87, June 2003) on SSRN. Here is the abstract:
Ree and Edgar at the Society for Applied Philosophy in London 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.)
Edelman at Buffalo At SUNY Buffalo, Lauren Edelman (U.C. Berkeley) presents Law at Work: An Institutional Approach to Civil Rights, with comments by Lucinda Finley (Buffalo) and James Johnson (Rochester).
Aolain at Texas At the University of Texas Faculty Colloquium, Fionnuala Ni Aolain (University of Ulster) presents The Paradox of Transition in Conflicted Democracies. Here is a taste:
Thursday, October 02, 2003
Solum at Boston University on the Layers Principle Today at Boston University, I will present The Layers Principle: Internet Architecture and the Law.
Street at NYU 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. Here is a taste:
Kutz at UCLA 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.
Horowitz at Texas At the University of Texas, Constitutional Theory Seminar, Donald Horowitz (Duke) presents Secession as a Problem of Political and Constitutional Theory.
Grady at Michigan At the University of Michigan Law and Economics series, Mark Grady (George Mason) presents Liability Failure.
Wilson at George Mason At George Mason, Bart Wilson (ICES, George Mason University) presents Experimental Gasoline Markets.
Rudd at Hertfordshire 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)
Hynes at Florida State At Florida State, Richard Hynes (William & Mary) presents Bankruptcy's Role in Debt Relief.
Wednesday, October 01, 2003
Copynorms and Nesson's Koan
Introduction Although the RIAA's litigation offensive is in full swing, there are grave doubts about its effectiveness. On the one hand, the RIAA simply cannot bring enough lawsuits to create a real deterrent effect. First, the number of suits is so small that the actual risk of becoming a defendant times the cost of settlement equals a miniscule amount. Second, the perception among users of P2P programs is that one can avoid any risk of suit by keeping the number of files shared on any one service below a threshold (usually thought to be 1000 files). On the other hand, there is no evidence that the RIAA is changing copynorms. My gut tells me that the law sometimes is an effective norm generator, and the RIAA's prosecutions do communicate the message that filesharing is unlawful. But there are countervailing considerations:
(2) The indudstry's PR campaign attempts to equate filesharing with theft, but folks instinctively understand that file sharing of a nonrivalrous good (the intellectual property) is not the moral equivalent of the physical taking of a rivalrous good (e.g. shoplifting a CD).
(3) Before Napster and other P2P programs, there was a well-established social norm that permitted copying from albums or CD's to make compilation tapes. This norm was reflected in the provisions of the Audio Home Recording Act which immunized the noncommercial copying of analog audio recordings.
(4) The litigation offensive may even create a backlash, as the RIAA goes after single moms and misidentifies sympathetic defendants. This backlash is reinforced by and in turn reinforces the perception that the RIAA is a bad actor.
(5) And of course, there is the obvious point that self-interest favors the copynorm that permits filesharing and disfavors the copynorm that would create social sanctions for use of P2P.
Ernest Miller’s Astute Observation I blogged last week about a post by Ernest Miller on Law Meme, titled Compulsory Licensing - Where Are the Defenders of HTTP?. At the time, I thought it was significant, but as it has had a chance to settle in, I’ve become convinced that Miller's observation reveals something truly important about copynorms. Here is what Miller wrote:
I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act [Can't stay away from that Public/Private distinction, huh? - Ed.]. If I were to stand on a street corner handing out CD-Rs to strangers (even were I doing so with no possibility of remuneration of any sort), most people would not consider that proper. If the RIAA were to sue me for such an act, would there be such an outcry over the injustice of it all? Yet, if I handed a CD-R to a friend, most would defend it. The difference is that one is private and the other public.
Nesson's Koan Copynorms are not brooding omnipresences in the sky. They emerge from social interaction, not from abstract moral theory. (Not to say the two are unrelated.) And in the case of copying, the reality on the ground is shaped by technology. Of course, it is a commonplace to observe that the connections between Copyright policy and technology. As Charlie Nesson observed with Zen-like clarity:
a monk, and a desk, and months,
and then Sean Fanning hit the scene.
The Ambiguity of Copynorms And this brings me to another, crucially important point. Copynorms are informal social norms, and therefore, they are ambiguous and underdeterminate in a way that copyright law is not. (Caveat: Copyright law, like all law, is underdeterminate and abmiguous to some degree.) Social norms or customs are rarely sharp edged. They are amorphous. Our copynorms are not well-defined, precisely because they emerge from the interaction of individual attitudes that are ambiguous and variant and because they are not "laid out as rules" but are, instead, complex dispositions to the expression of attitudes.
Nonetheless, we can try to grasp the shape of the ambiguity. Consider the following two by two matrix:
--------------------Characteristics------ -----------------------of copying ----------------------------------------- -----------|----Public----|----Private---| -----------_______________________________ -----------|--------------|--------------| -----------|--------------|--------------| -----------|--------------|--------------| Commercial-|---Taboo------|------?-------| -----------|--------------|--------------| -----------|--------------|--------------| -----------_______________________________ -----------|--------------|--------------| -----------|--------------|--------------| Non--------|--------------|--------------| Commercial-|------?-------|--Permitted---| -----------|--------------|--------------| -----------|--------------|--------------| -----------_______________________________
Entertain this tentative hypothesis--at least for durations of this post! Copynorms disfavor public, commercial copying—even when the copying is legal. This fact helps explain the Copyright Term Extension Act, which could be sold to Congress on the theory that it is just wrong for an author’s writings or composer’s music to be copied in mass, for profit, without permission. Copynorms favor private, noncommercial copying, even when it is unlawful. This explains why the Supreme Court’s decision in Sony is understood to permit any private, noncommercial use of the VCR—even though the language of the decision suggests that archival private, noncommercial copying is infringement. Who seriously thinks it is wrong to keep a videotape of your favorite Seinfeld episode or to make a compilation tape for a friend? But when we think about public, noncommercial copying or private, commercial copying, our intuitions about social norms begin to run out. Is it wrong for a friend to compensate you for taping a miniseries that she would otherwise miss? Does it violate a social norm to put an MP3 file up on a highly visible website or to distribute hundreds of compilation tapes for free? I suspect that opinions differ on these questions.
And here is the RIAA’s problem. P2P is currently perceived as noncommercial, private activity. And the individuals who share files on P2P truly are engaged in noncommercial activity—but as to the private part—that is not so clear.
A Modest Proposal So here is a modest proposal for the RIAA. Go with the flow! Use the norms, don’t fight them. What does that mean in practical terms? When the RIAA sends the message, “copying is theft,” they are fighting the norms. No one believes that copying is the moral equivalent of theft, because everyone thinks that private, noncommercial copying is just fine. Even the RIAA seems to have thought that when they agreed to the provisions of the Audio Home Recording Act that permit noncommercial analog copying. And the fact that copynorms diverge from norms about theft is rooted in the underlying economic reality--consumption of intellectual property is nonrivalrous, whereas consumption of tangible property is rivalrous.
So here is an alternative message that the RIAA could try:
At the concrete level, the RIAA would be saying, “Make a compilation CD. Use AOL instant messenger to share MP3 files with your friends. We’re cool with that. But giving away MP3 files by the hundreds and thousands—that’s not flat.”
If Ernest Miller is right about files sharing via HTTP (and I think he is), then this strategy would actually have a chance of success. The RIAA would be trying to limit the copynorm that allows copyright violations to the category of private, noncommercial copying. Of course, this would still cost record sales, but it would not doom the industry. The industry lived with MP3 files before Napster. The industry actually accepted the decriminalization of analog taping. The industry can live with private, noncommercial file sharing.
But “can” does not equal “will”! Suppose that my speculative hypothesis is right and that the RIAA's best hope is to go with the flow. Do I think there is any chance that the RIAA would embrace my modest proposal? Nope! Not a snowball’s chance in hell. And where will the music industry go if it continues its willful blindness to copynorms. I’m not sure where they are going, but it is becoming increasingly clear that they are going there in a handbasket.
Update: And Ernest Miller has more on Law Meme here.
Zacharias and Green on Federal Regulation of Lawyers Fred Zacharias and Bruce Green (University of San Diego School of Law and Fordham University School of Law) have posted Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory (forthcoming Vanderbilt Law Review). Here is the abstract:
Alexander on Conceptions of Political Morality Lawrence Alexander (University of San Diego School of Law) has posted The Jurisdiction of Justice: Two Conceptions of Political Morality (forthcoming San Diego Law Review, 2004) on SSRN. Here is the abstract: