Legal Theory Blog |
|
 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 09/30/2002 01/01/2003 - 01/31/2003 02/01/2003 - 02/28/2003 03/01/2003 - 03/31/2003 04/01/2003 - 04/30/2003 05/01/2003 - 05/31/2003 06/01/2003 - 06/30/2003 07/01/2003 - 07/31/2003 08/01/2003 - 08/31/2003 09/01/2003 - 09/30/2003 10/01/2003 - 10/31/2003 11/01/2003 - 11/30/2003 12/01/2003 - 12/31/2003 01/01/2004 - 01/31/2004 02/01/2004 - 02/29/2004 03/01/2004 - 03/31/2004 04/01/2004 - 04/30/2004 05/01/2004 - 05/31/2004 06/01/2004 - 06/30/2004 07/01/2004 - 07/31/2004 08/01/2004 - 08/31/2004 09/01/2004 - 09/30/2004 10/01/2004 - 10/31/2004 11/01/2004 - 11/30/2004 12/01/2004 - 12/31/2004 01/01/2005 - 01/31/2005 02/01/2005 - 02/28/2005 03/01/2005 - 03/31/2005 04/01/2005 - 04/30/2005 05/01/2005 - 05/31/2005 06/01/2005 - 06/30/2005 07/01/2005 - 07/31/2005 08/01/2005 - 08/31/2005 09/01/2005 - 09/30/2005 10/01/2005 - 10/31/2005 11/01/2005 - 11/30/2005 12/01/2005 - 12/31/2005 01/01/2006 - 01/31/2006 02/01/2006 - 02/28/2006 03/01/2006 - 03/31/2006 04/01/2006 - 04/30/2006 05/01/2006 - 05/31/2006 06/01/2006 - 06/30/2006 07/01/2006 - 07/31/2006 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? (Eric Muller) --Law & Society Weblog (Group Blog) --The Leiter Reports (Brian Leiter) --Lessig Blog (Lawrence Lessig) --Marstonalia (Brett Marston) --Paper Chase @ Jurist (Bernard Hibbitts) --Political Arguments (Group Blog) --ProfessorBainbridge.com (Stephen Bainbridge) --Pea Soup (Group Blog) --Punishment Theory (Group Blog) --The Right Coast (Group Blog) --SCOTUS Blog (Group Blog) --Sentencing Law and Policy (Douglas Berman --Statutory Construction Zone (Gary O'Connor) --TaxProf Blog (Paul Caron) --Volokh Conspiracy (Group Blog) Websites of Interest +Arts and Letters Daily +Conference Alerts +Daily Whirl +fa.philos-l +Economic Theory News +Encyclopedia of Law and Economics +Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. Oddi) --Infothought (Seth Finkelstein) --IPKat (Jeremy Phillips and Ilanah Simon) --Law and Economics Blog (Greg Goelzhauser) --Law Dork (Chris Geidner) --Law Meme (Group Blog) --Lee Blog Edward Lee --Legal Ramblings (Steven Wu) --Lenz Blog (Karl-Friedrich Lenz) --Letters of Marque (Heidi Bond) --The Light of Reason (Arthur Silber) --Matthew Yglesias --philosophy.com (Gary Sauer-Thompson ) --Public Defender Dude --Rodger A. Payne's Blog --Southern Appeal (Group Blog) --Strange Doctrines/A> --Susan Crawford blog --A Taxing Blog (Group Blog) --That's News to Me (Group Blog) --Thoughts Arguments and Rants (Brian Weatherson) --Three Years of Hell to Become the Devil --The Trademark Blog (Martin Schwimmer) --Troppo Armadillo (Ken Parish) --Technology 360 --Tutissima Cassis (Nate Oman) --Unlearned Hand --Weatherall's Law (Kim Weatherall) --WENDY.SELTZER.ORG (Wendy Seltzer) --yin (Tung Yin) Legal Theory Programs & Websites --Arizona State Committee on Law and Philosophy --Cambridge Forum for Legal and Political Philosophy --Columbia Law School Center for Law and Philosophy --Columbia Legal Theory Workhsop --Georgetown University Law Center--Colloquium on Constitutional Law and Theory --Jurisprudence and Social Policy Program (U.C. Berkeley) --Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley) --NYU Colloquium in Legal, Political and Social Philosophy --Oxford Jurisprudence Discussion Group --Oxford Legal Philosophy --Oxford Centre for Ethics & Philosophy of Law --Queen's University Belfast Forlum for Law and Philosophy --Rutgers Institute for Law and Philosophy --UCLA Legal Theory Workshop --University of Pennsylvania Institute for Law and Philosophy --University College London: Colloquium in Legal and Social Philosophy --University of Chicago Law And Philosophy Workshops --University of Chicago: John M. Olin Program in Law and Economics Workshop --University of San Diego Institute for Law and Philosophy --University of Texas Law and Philosophy Program --Yale Law School: Legal Theory Workshop Links to Law School Workshops +Australian National University Faculty Events +Boston University +Buffalo +Columbia Center for Law and Economic Studies +Florida State +Fordham +George Mason +George Washington--IP Workshop Series +Georgetown Colloquium on Intellectual Property & Technology Law +Georgetown Law Workshops +Georgetown Law and Economics Workshop +Georgetown Law & Economics Workshop Series +Hofstra +University of Illinois +Lewis & Clark +Loyola Marymount +New York University +NYU Legal History Colloquium +Northwestern Law Colloquium +Oxford Law Events +Rutgers, Camden +Stanford Center for Internet & Society +Stanford Law School Olin Series +UCLA Colloquium +UCLA Legal History Workshop +UCLA Tax Policy --University of Chicago: John M. Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
|
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
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 members—class 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.) 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:
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. ________________________________________Ben __________________________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: In this pair of books (with more to come), Ackerman develops an original story about the meaning of American constitutionalism that combines two very powerful ideas. First, Ackerman emphasizes the idea of "popular sovereignty"--the appealing idea that "We the People" really did author (or authorize) the constitution in a meaningful and normatively significant sense. Second, Ackerman argues persuasively that fundamental constitutional changes are the product of what he calls "constitutional politics," fuzzily bounded periods of extraordinary popular participation in the political process, in which "We the People," employ extralegal mechanisms to reshape the constitutional order. 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:
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. 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) 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. 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 |